AG2003/7657, Transcript of Proceedings [2003] AIRCTrans 5208 (27 November 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 5265

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

AG2003/7657

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the
Act by Australian Nursing Federation -
Victorian Branch and Others for
certification of the Bellview Residential
Aged Care Services, ANF and HSUA
Certified Agreement 2002

MELBOURNE

2.26 PM, MONDAY, 10 NOVEMBER 2003

PN1

MS L. KELLY: I appear on behalf of the Australian Nursing Federation.

PN2

MR J. YIANOULATOS: I appear on behalf of the Health Services Union.

PN3

MR RAHILLY: I seek leave to appear on behalf of Windsor Enterprises Pty Ltd, trading as Bellview Residential Aged Care Services.

PN4

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

PN5

MS KELLY: Thank you, your Honour. Your Honour, this submission reflects the previous submission for Tower Grange Residential Aged Care in that this agreement was lodged 13 days late for the same reasons given previously, that ANF received the agreement unsigned by the employer, after which we returned it to Clare Dewan and Associates for the employer's signature and return to the ANF, after which then we lodged the agreement to be certified on 16 September.

PN6

THE SENIOR DEPUTY PRESIDENT: Yes, I will extend the time for lodging the documents.

PN7

MS KELLY: Thank you, your Honour. This is an application again under division 2 of part VIB of the Workplace Relations Act to certify an agreement under section 170LJ. The title of the agreement is Bellview Residential Aged Care Services and Australian Nursing Federation and Health Services Union of Australia Certified Agreement 2002. The parties to the agreement are Windsor Enterprises Pty Ltd trading as Bellview Residential Aged Care Services, the Australian Nursing Federation and the Health Services Union of Australia. The agreement was approved by a valid majority of employees on 15 August this year.

PN8

The employees had the opportunity during the ballot period to view the agreement and have their questions answered by the union and management with respect to the terms of the agreement. The agreement provides for a pay increase each year of the agreement and other terms and benefit in addition to the relevant awards. The agreement also provides a dispute settlement procedure at clause 35 of the agreement. The ANF would rely on our statutory declaration with respect to this agreement and subject to any questions that your Honour has we would seek that this agreement is certified effective from the date of today. If the Commission pleases.

PN9

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Yianoulatos.

PN10

MR YIANOULATOS: Yes, your Honour. It appears as though this matter is similar as the previous matter before you. There were two ballots; one was on 16 June 2003, is my understanding, and subsequent ballot on 15 August, and the statutory declaration provided by Craig Thompson precedes the ballot which was taken on 15 August 2003, sir. In view of this, it is my respectful submission - seeking from the Court that we waive the requirement under rule 6 to furnish further statutory declarations. We say that, in short, the position as what is detailed in the statutory declaration of Craig Thompson stands today and we do support the application for the views expressed by my friend.

PN11

THE SENIOR DEPUTY PRESIDENT: Why was there a second ballot?

PN12

MR YIANOULATOS: The employees requested it, sir. That is my understanding.

PN13

THE SENIOR DEPUTY PRESIDENT: Was it not approved on the first ballot?

PN14

MR YIANOULATOS: There were ballot papers left lying around, sir, I am informed.

PN15

THE SENIOR DEPUTY PRESIDENT: But there were two ballots though, were there?

PN16

MR YIANOULATOS: Yes, there was one in June and a subsequent one in August and the employees, it is my understanding, have requested the second ballot.

PN17

THE SENIOR DEPUTY PRESIDENT: And Mr Thompson has mistakenly put in the date of the first ballot?

PN18

MR YIANOULATOS: Well, his statutory declaration is duly declared 15 July, sir.

PN19

THE SENIOR DEPUTY PRESIDENT: It preceded?

PN20

MR YIANOULATOS: Which preceded the second ballot and failed to provide any subsequent statutory declaration.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes, well his statutory declaration obviously doesn't relate to this agreement.

PN22

MR YIANOULATOS: Sir, as what I can offer to the Court with some comfort is to provide an amended statutory declaration if in fact the Commission seeks that. Otherwise, I rely upon rule 6 in terms of waiving that position. We are quite comfortable by virtue of what has happened in the passage of time there has been no prejudice in all the circumstances and it is wanted by the employees that certification take place.

PN23

THE SENIOR DEPUTY PRESIDENT: Mr Rahilly.

PN24

MR RAHILLY: Your Honour, again my client supports the certification of this agreement and submits that there are no reasons pursuant to section 170LU why the agreement should not be certified. Your Honour, can I just say in relation to the circumstances the HSUA have drawn to your attention, it may be, your Honour, that the sequence of events were that there was a ballot in June, that a declaration was prepared by me, a copy of which was provided to both the ANF and the HSUA.

PN25

However, subsequent to the processing of the documents this irregularity that the staff drew to the attention of the ANF was raised with me and by agreement we decided that the best approach was to re-ballot and that is what was done on 15 August. It may simply be that the HSUA have not received or not acted upon - because I am sure I sent it to them - the revised statutory declaration.

PN26

THE SENIOR DEPUTY PRESIDENT: The statutory declaration filed on behalf of your client and the ANF pertains to the agreement that is sought to be certified?

PN27

MR RAHILLY: Yes, it does, your Honour.

PN28

THE SENIOR DEPUTY PRESIDENT: And that is in the same terms at the time of each ballot, is it? The agreement wasn't changed?

PN29

MR RAHILLY: Precisely the same, yes.

PN30

THE SENIOR DEPUTY PRESIDENT: It was just sought to be approved a second time and that would not render any of the other requirements nugatory, would it? It was provided for - obviously, still provided 14 days before approval - far more than 14 days.

PN31

MR RAHILLY: Yes, indeed, your Honour.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes.

PN33

MR RAHILLY: I don't believe it raises any issues of compliance with requirements.

PN34

THE SENIOR DEPUTY PRESIDENT: No. Very well. Yes, well, I will remove the statutory declaration from the HSUA which is obviously one that doesn't pertain to the vote that took place and will not be relied upon. I will waive the requirement for the HSUA to file a statutory declaration and I will approve the agreement for the reasons I outlined in the previous matter. I will also extend the time for filing of the documentation.

ADJOURNED INDEFINITELY [2.34pm]