AG2003/7746, Transcript of Proceedings [2003] AIRCTrans 5210 (27 November 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 5267

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

AG2003/7746

APPLICATION FOR CERTIFICATION
OF AGREEMENT

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

MELBOURNE

2.38 PM, MONDAY, 10 NOVEMBER 2003

PN1

MS L. KELLY: I am appearing for the Australian Nursing Federation.

PN2

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

PN3

MR RAHILLY: I seek leave on this occasion to appear for Victorian Hospitals Industrial Association of which Bass Care is a member.

PN4

THE SENIOR DEPUTY PRESIDENT: Yes. Why are you appearing for VHIA and not for Bass Care?

PN5

MR RAHILLY: Well, VHIA is a registered organisation, your Honour, of which Bass Care is a member. I am happy to appear for Bass Care.

PN6

THE SENIOR DEPUTY PRESIDENT: Yes. Well, the agreement is made been Bass Care and the union so I would have thought your appearance should be for Bass Care.

PN7

MR RAHILLY: Well, in that case, your Honour - - -

PN8

THE SENIOR DEPUTY PRESIDENT: You can appear for both.

PN9

MR RAHILLY: Well, I do, your Honour.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes, leave is granted. Yes?

PN11

MS KELLY: Thank you, your Honour. I regret to say the first matter again that I must address with you is lodgement of the application. This agreement was filed quite some time out of date, some 71 days according to my calculations.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes, why?

PN13

MS KELLY: The reason that I was provided by the employer was that - Mr Rahilly may be able to provide more detail but, however, I was advised that the voting result was sent on time by the employer to the VHIA offices and there it was inadvertently placed in amongst other documents and went unnoticed for several weeks.

PN14

THE SENIOR DEPUTY PRESIDENT: Now I know why Mr Rahilly was asked to appear for VHIA instead of one of their employees being here.

PN15

MS KELLY: That was the reason explained to me. When it was noticed by VHIA that it hadn't progressed and they discovered the documents they processed the documents from their own and provided ANF with the relevant details so that we could continue with the application process.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes.

PN17

MS KELLY: Your Honour, the agreement was approved by the employees on 25 June by a valid majority of the employees. I am jumping ahead, sorry. The title of this agreement firstly is Bass Care and Australian Nursing Federation and Health Services Union of Australia Certified Agreement 2002; application of which for certification was made under division 2 of part VIB of the Workplace Relations Act pursuant to section 170LJ. The parties to the agreement are Boroondara Aged Care Society trading as Bass Care in the facilities of Harcourt Nursing Home and Chatham Lea Hostel, the Australian Nursing Federation and Health Services Union of Australia.

PN18

This agreement is similar to other agreements before you today in that it provides for a pay increase in each year of the agreement and other benefits over and above the relevant award entitlements. There is a dispute settling procedure contained in the agreement at clause 37. This agreement will have a nominal expiry date not more than three years after it comes into operation and bargaining periods for the employer. Subject to any questions that your Honour might have, the ANF would rely on the statutory declaration as submitted and request that this agreement be certified effective from the date of today in the terms sought. If the Commission pleases.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes. You say it was approved on 25 June, Ms Kelly?

PN20

MS KELLY: That is what I have noted here, yes.

PN21

THE SENIOR DEPUTY PRESIDENT: It is not what your - - -

PN22

MS KELLY: 27 June, sorry, on the stat dec. I apologise for that.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes, on your stat dec but 25 June on the other two stat decs. I suppose it doesn't matter too much, does it?

PN24

MS KELLY: Sorry. On our stat dec it says 27 June.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes, and on the other two it says 25 June.

PN26

MS KELLY: Yes, I apologise for that. Mr Rahilly might be able to - - -

PN27

THE SENIOR DEPUTY PRESIDENT: Which was it?

PN28

MS KELLY: 25 June, I am informed.

PN29

THE SENIOR DEPUTY PRESIDENT: And does it relate to the whole of a single business or part of a single business? Your stat dec suggests the whole - - -

PN30

MS KELLY: We haven't answered that so that does suggest the whole of the business at both of those addresses.

PN31

THE SENIOR DEPUTY PRESIDENT: The HSUA stat dec suggests and the employer's stat dec suggests part. Perhaps Mr Rahilly might know. Well, it is not his client so he may not. Mr Yianoulatos, what do you say before I call on Mr Rahilly?

PN32

MR YIANOULATOS: Well, sir, I have a few issues. It is with regret that we have to address you from our end in relation to being out of time. But for the submissions made by Ms Kelly we support the application. We can't offer an explanation as to the delay except save to say that the Health Services Union acted diligently and promptly upon receiving the documentation, sir. We rely upon the statutory declaration of Craig Thompson, which was declared on 16 September 2003.

PN33

It is my understanding, on instructions, that it is part of a single business and, sir, my friend also points out to me that she does confirm that it was 25 June 2003 that the vote was taken. So we are all ad idem in terms of when the ballot was taken, sir.

PN34

THE SENIOR DEPUTY PRESIDENT: Why is it part of a single business, do you think?

PN35

MR YIANOULATOS: Sir, I am just bound by instructions in relation to what I have got here. I can't take the matter any further in terms of probing into what the position except save to say that Craig Thompson himself, his statutory declaration, does in fact highlight that it is part of a single business. Perhaps Mr Rahilly can provide further insight.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes, I might observe that Mr Thompson's statutory declarations in these matters have been all over the place.

PN37

MR YIANOULATOS: I hear what you say, sir.

PN38

THE SENIOR DEPUTY PRESIDENT: And I wouldn't rely on one of Mr Thompson's statutory declarations without more, I can tell you that.

PN39

MR YIANOULATOS: I do take on board what you say, sir.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes. And that is no criticism personally of him but he has had gaps and omissions and errors in his statutory declarations for months. Yes, Mr Rahilly, can you assist at all or because this is not your direct client, are you not in that position?

PN41

MR RAHILLY: I will do my best, your Honour. Just on the question of whether Bass Care Limited is - sorry, the agreement relates to a part or the whole of the business.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes.

PN43

MR RAHILLY: I draw your Honour's attention to clause 4.1, which - - -

PN44

THE SENIOR DEPUTY PRESIDENT: The statutory declaration?

PN45

MR RAHILLY: Of the agreement.

PN46

THE SENIOR DEPUTY PRESIDENT: Of the agreement, yes.

PN47

MR RAHILLY: That says that the agreement is binding on Bass Care Limited trading as Harcourt Nursing Home and Chatham Lea Hostel .

PN48

THE SENIOR DEPUTY PRESIDENT: Yes, and from that I can't tell whether Bass Care does any more than that or whether that is the whole of Bass Care's business.

PN49

MR RAHILLY: I know this is anecdotal, your Honour, and I don't know that I am correct about saying it but I do have a recollection that Bass Care is a function of local government, which does provide services beyond residential aged care services.

PN50

THE SENIOR DEPUTY PRESIDENT: Yes.

PN51

MR RAHILLY: So I suspect that the reason that clause 41 is in the form that it is is to limit the scope of the agreement to that operational part of its business.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you for that.

PN53

MR RAHILLY: Your Honour, just on the section 111(1)(r) question, the reason given by Ms Kelly for the delay which occurred in the documents being prepared is what I am instructed, that the papers were received at VHIA but somehow or other got caught up in another file and that wasn't noticed. What happened, your Honour, is that following the filing of the application, and I suspect at the suggestion of VHIA, the service did conduct a vote of the staff at a staff meeting in the form of a show of hands, and that was on 31 October this year, and at that vote 78 of the staff who attended voted and all of those agreed.

PN54

The original vote which took place involved 71 employees who voted, 69 of those were in favour, two were informal votes, and that is of a total of 125 employees at that time, that is at 25 June. And on my instructions since the vote of 25 June there have been two changes to staff, two employees have left and they have in fact been replaced by two others, but for those reasons it is submitted that your Honour might exercise your discretion pursuant to section 111(1)(r). And if your Honour does that then I am here to support the certification of the agreement and would submit that there are no reasons pursuant to section 170LU why the agreement should not be certified.

PN55

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Well, in the circumstances I will extend the time for lodging the documentation until 24 September 2003. It appears more likely than not that the agreement pertains to part of a single business and I will certify the agreement on that basis for the reasons that I have previously enunciated in other matters.

ADJOURNED INDEFINITELY [2.48pm]