AG2003/7869, Transcript of Proceedings [2003] AIRCTrans 5359 (4 December 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 5351

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS
SENIOR DEPUTY PRESIDENT O'CALLAGHAN
COMMISSIONER WHELAN

AG2003/7869

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LC of the Act
by Victorian Hospitals' Industrial Association
and Another for certification of the
Victorian Public Sector - General Dentists
Agreement 2002 - Number Two

MELBOURNE

1.06 PM, TUESDAY, 18 NOVEMBER 2003

PN1

MR A. DJONEFF: I appear for the Victorian Hospitals' Industrial Association.

PN2

MR W. TOWNSEND: I appear for the Community and Public Sector Union.

PN3

VICE PRESIDENT ROSS: Mr Townsend or Mr Djoneff, I don't mind which - okay.

PN4

MR DJONEFF: By agreement, your Honour. Technically, it is our application. This is an agreement that in all its terms has already been certified by the Commission in respect of general dentists employed in the public health sector of Victoria. The agreement you have before you simply seeks to, in a sense, rope in a number of small employers who, for various reasons, were not encompassed at the time of the certification of what I might now term the number one agreement, given that we are seeking to label this as the number two agreement.

PN5

VICE PRESIDENT ROSS: The number one agreement was the one certified on 14 January?

PN6

MR DJONEFF: Was certified in January, correct, your Honour.

PN7

VICE PRESIDENT ROSS: When you say "rope in", it is a separate agreement.

PN8

MR DJONEFF: It is a separate agreement precisely in the same terms as the number one - - -

PN9

VICE PRESIDENT ROSS: And applying to different parties, being the ones you missed out the first time round.

PN10

MR DJONEFF: Correct, precisely. It seeks no more than to capture the remaining public sector employers who are party to the agreement and who, indeed, are applying the terms of the agreement to their employees and have been doing so since the parties reached the initial agreement prior to the original certification in January of this year.

PN11

VICE PRESIDENT ROSS: There are two particular issues I wanted to go before just going through the other statutory tests. The first is there is no section 170XF application attached. I think you would need to make one, even though there was a designated award - - -

PN12

MR DJONEFF: Yes, your Honour.

PN13

VICE PRESIDENT ROSS: - - - in the earlier proceedings but this being a separate application I think formally you would need to make that - - -

PN14

MR DJONEFF: Yes. Perhaps we were a bit presumptuous in filing this without having done that.

PN15

VICE PRESIDENT ROSS: That is fine.

PN16

MR DJONEFF: But having the award found to be acceptable by the Commission, we perhaps made an assumption that perhaps technically it is not - and we are happy to furnish the appropriate paperwork too.

PN17

VICE PRESIDENT ROSS: Well, you can make the application on your feet now, orally, if you wish and we can grant leave to - - -

PN18

MR DJONEFF: Well, if that is acceptable to you, your Honour, we would certainly make that application. The award mentioned in the statutory declaration of both myself and the union identifies the award that is the basis on which the no disadvantage test would be applied.

PN19

VICE PRESIDENT ROSS: That is the Australian Government Employment Conditions and Salaries Award 2003, is that the one?

PN20

MR DJONEFF: Professional and Executive General Conditions of Service and Salaries Award 2002. That was deemed to be the appropriate award by the Full Bench in January of this year and it is equally appropriate to be the relevant award for this agreement for the purposes I have outlined.

PN21

VICE PRESIDENT ROSS: And I take it that the award that you have mentioned, the Australian Government Employment - Professional and Executive General Conditions of Service and Salaries Award 2002 covers employees engaged in the same kind of work as that of those persons under the agreement?

PN22

MR DJONEFF: Yes, your Honour, that is correct, professionally qualified dentists.

PN23

VICE PRESIDENT ROSS: Well, just in relation to that discrete issue, do I take it that you agree, Mr Townsend, that is the appropriate award to determine or designate pursuant to section 170XF?

PN24

MR TOWNSEND: That is correct. The reason we have had to go with that award, there is actually no other award that is relevant to dentists anywhere in the country, other than that award. It is the award that was used for the number one MECA, as Mr Djoneff has pointed out and was also used for a number of other public sector dental matters recently. If the Commission pleases.

PN25

VICE PRESIDENT ROSS: All right. Well, on the basis of the material or submissions put to us, pursuant to section 170XF(2), we determine that the Australian Government Employment - Professional and Executive General Conditions of Service and Salaries Award 2002 will be the award designated for the purpose of determining the no disadvantage test in this case.

PN26

MR DJONEFF: Thank you, your Honour.

PN27

COMMISSIONER WHELAN: Can I just ask A question about the attachment in relation to the voting - - -

PN28

MR DJONEFF: Attachment 1, Commissioner?

PN29

COMMISSIONER WHELAN: Yes, in relation to the voting process.

PN30

MR DJONEFF: Yes.

PN31

COMMISSIONER WHELAN: It is just not quite clear to me that process and secondly how does that relate to the timing of when the application was actually made, given that, as I understand it, the application was made on 2 October - or lodged on 2 October - - -

PN32

MR DJONEFF: Yes, your Honour.

PN33

COMMISSIONER WHELAN: - - - and these votes go back - - -

PN34

MR DJONEFF: The vote was taken some time - many months.

PN35

COMMISSIONER WHELAN: Yes.

PN36

MR DJONEFF: Yes, yes. I was going to address that question for the obvious reasons. You will note in attachment 1, if the Commission pleases, that in respect of some of the employers at the relevant time in January or shortly prior to that those agencies at that point in time did not actually employ a dentist. They were, if you like, between dentists as it were. You will also note that all of these agencies are very small employers and they have great difficulty attracting dentists and they do not infrequently experience gaps between the leaving of one dentist and the acquiring of another dentist for their particular purposes.

PN37

So that is one explanation. A number of the others, if the Commission pleases, for various reasons that are not entirely clear to me either that the individual employer did not get around to doing the relevant paperwork, notwithstanding certain urgings and promptings from my office. All of the employees, the relevant employees, dentists in respect of these employers, have letters of appointment or employment contracts that actually articulate the terms of this agreement. So to the extent that they were not employees at the time, an offer of employment was made precisely in the terms of this agreement and was accepted. So in an indirect sense, there is an acceptance by those employees at a later stage that the terms of the offer were acceptable.

PN38

We have had difficulty in extracting the relevant paperwork. We are very conscious of the fact that we are now here in November in respect of employees who voted many months prior to that and for that reason my office actually contacted each and every one of those employers in the last week, knowing that this matter was going to come up and the question would obviously be put by the Commission, to say, "Has the record of vote, has the record of the employees place changed?", and the answer has been no, there has been no change.

PN39

So I can give you the undertaking that nothing has changed in the work place that might bring about a question that the agreement entered into was not on foot at the time as it were.

PN40

VICE PRESIDENT ROSS: We are satisfied on the basis of the propositions that you have put that time should be extended, Mr Djoneff.

PN41

MR DJONEFF: Thank you, your Honour.

PN42

VICE PRESIDENT ROSS: Can I just go to some other questions dealing with the relevant statutory tests.

PN43

MR DJONEFF: Yes.

PN44

VICE PRESIDENT ROSS: I note the application states it has been made under division 2 of part VIB. Are the employer parties to the agreement a constitution or corporations within the meaning of the Act, or employers operating in Victoria?

PN45

MR DJONEFF: Yes, your Honour.

PN46

VICE PRESIDENT ROSS: I note that a written copy of the agreement has been submitted for certification. Is the agreement about matters pertaining to the employment relationship?

PN47

MR DJONEFF: Solely, your Honour.

PN48

VICE PRESIDENT ROSS: Does the organisation of employees party to the agreement have at least one member employed in the business whose employment will be subject to the agreement?

PN49

MR TOWNSEND: Your Honour, the number, as Mr Djoneff has pointed out, these are relatively small employers and in some instances there is actually only one employee. At this point in time I am unable to confirm whether we actually have one employee with each of the employers. We do have members who are employed as public sector dentists and my understanding is that in some instances the employees are part time and may move around the range of employers who are currently covered by the number one agreement or in this instance the proposed number two agreement.

PN50

COMMISSIONER WHELAN: So you are saying that some of these dentists might, in fact, be employed by two different employer respondents - - -

PN51

MR DJONEFF: Yes.

PN52

MR TOWNSEND: That is correct, your Honour.

PN53

COMMISSIONER WHELAN: - - - because they are part time in both of those places.

PN54

MR TOWNSEND: That is correct, your Honour. One of the issues with this particular set of negotiations is it represents a new agreement for the employees who were formally covered by a State award which was repealed back in 1993 by the Kennett Government and this is the first occasion where the parties have sat down and attempted for the reasons set out in the statutory declarations to re-regulate the terms and conditions of employment which quite frankly have become quite a mess over the years, beyond this point.

PN55

VICE PRESIDENT ROSS: Well, the difficulty we have is that - can I take you to section 170LJ(1).

PN56

MR TOWNSEND: Yes, I have found the section, your Honour.

PN57

VICE PRESIDENT ROSS: I mean on the face of it, it would seem and I am only expressing this as a tentative view but you have to have at least one member employed in each of the single businesses. You have indicated you are not in a position to confirm that as a matter of fact today, and it may be complicated by the fact that, as you say, there are people that move between entities. Would you prefer if we gave you an opportunity over the next day or so - we will go through the rest of the statutory tests, but to confirm that that is the case that you do have at least one member employed in each of the single businesses and that you are entitled to represent their industrial interests?

PN58

MR TOWNSEND: Your Honour, I think that - that I would be able to - whilst I am not able to confirm precisely whether we have one member with each of those employers I think I can confirm for a fact that it is unlikely that we are going to have at least one member in each of them.

PN59

VICE PRESIDENT ROSS: Well, if that is the case then how can we certify the agreement?

PN60

MR TOWNSEND: I believe that that may be a problem that we face, your Honour.

PN61

VICE PRESIDENT ROSS: Okay.

PN62

MR TOWNSEND: I will need to get further instructions.

PN63

VICE PRESIDENT ROSS: We are content to give you an opportunity to consider your position in relation to that, Mr Townsend. Look, an alternative may be to - and I appreciate this may involve a further vote of the employees, but narrow the scope of the respondency to those enterprises where you do have a member. There are at least three options. Firstly, you can get instructions to confirm - because it may well be that you do have a member in each of the single businesses in which case there would be no impediment.

PN64

Secondly, you may wish to put submissions in relation to the operation of LJ(1) in this matter as to why the agreement or how the agreement can be certified despite the fact that you do not have a member in each of the single businesses. It is not immediately apparent to me what argument that might be but nevertheless I do not want to deny you the opportunity of putting it. Or, thirdly, you may recast your application by narrowing its scope to only those single businesses where you do have a member. Look, so that we do not waste the time we have available today, I will continue to go through the statutory test questions and then the only matter outstanding will be the single business issue, presumably.

PN65

I note what is said about the - well, just before I leave you, Mr Townsend, I take it that for those areas where you do have members are you - is your organisation entitled to represent their industrial interests in relation to work that would be subject to the agreement?

PN66

MR TOWNSEND: My understanding is that we are, your Honour. It goes back to a section 118A demarcation decision the Victorian public health sector made in 1993, I believe.

PN67

VICE PRESIDENT ROSS: Okay. I note what is said in the statutory declaration about the provision of material to employees at least, and that copies of the full agreement at least 14 days before meetings of which the agreement was approved and what it said about the consultation process. In relation to the valid majority in respect of each of these single businesses covered by the agreement - - -

PN68

MR TOWNSEND: Yes, your Honour.

PN69

VICE PRESIDENT ROSS: - - - was a vote taken of the employees employed at the time whose employment would be subject to the agreement?

PN70

MR TOWNSEND: Yes, your Honour.

PN71

VICE PRESIDENT ROSS: Did each employee employed at that time have an opportunity to cast a vote?

PN72

MR DJONEFF: Yes, your Honour.

PN73

VICE PRESIDENT ROSS: And were a majority of the valid votes cast in favour of approving the agreement?

PN74

MR DJONEFF: Yes, your Honour.

PN75

VICE PRESIDENT ROSS: In relation to the no-disadvantage test would the certification of the agreement result, on balance, in a reduction in the overall terms and conditions of employees covered by it?

PN76

MR DJONEFF: It will not result in a reduction of employment entitlements.

PN77

VICE PRESIDENT ROSS: And I note there is a disputes settlement clause in clause 37, is that right?

PN78

MR DJONEFF: Yes, your Honour.

PN79

VICE PRESIDENT ROSS: And there is a nominal expiry date in clause 3, being 14 January 2006?

PN80

MR DJONEFF: Correct, your Honour.

PN81

VICE PRESIDENT ROSS: In relation to termination of employment are any provisions of the agreement inconsistent with a provision of division 3 of part VIA, an order by the Commission under that division or any injunction granted or any order made by the Court under that division?

PN82

MR DJONEFF: No, there is no inconsistency, your Honour.

PN83

VICE PRESIDENT ROSS: In relation to negotiating conduct, are there any matters under section 170LU(3) which would lead me to refuse or lead us to refuse to certify the agreement?

PN84

MR DJONEFF: Not that I can point to, your Honour.

PN85

VICE PRESIDENT ROSS: Do any provisions of the agreement discriminate against an employee whose employment will be subject to it because of or for reasons including race, colour, sex, sexual preference, age, political opinion, national extraction or social origin?

PN86

MR DJONEFF: Your Honour, given the shortage of dentists we will take any colour, creed, religion and anything else we can lay our hands on.

PN87

VICE PRESIDENT ROSS: So I take it "no" is the answer then?

PN88

MR DJONEFF: I think that is - the short answer is "no".

PN89

VICE PRESIDENT ROSS: Does the agreement contain any objectionable provisions within the meaning of section 170LU(2)(a)?

PN90

MR DJONEFF: No, your Honour.

PN91

VICE PRESIDENT ROSS: All right. Thank you. I note what is said in the statutory declaration as to the public interest considerations set out at paragraph 4(a) through to (e).

PN92

MR DJONEFF: Yes, your Honour.

PN93

VICE PRESIDENT ROSS: Mr Townsend, do you adopt essentially the answers that have been given by Mr Djoneff.

PN94

MR TOWNSEND: Your Honour, I do.

PN95

VICE PRESIDENT ROSS: Okay. Thanks.

PN96

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Mr Djoneff - - -

PN97

MR DJONEFF: Yes, your Honour.

PN98

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: You are asking us to certify this agreement on the basis that we are satisfied that it would be in the public interest to do so.

PN99

MR DJONEFF: Yes, your Honour.

PN100

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: This is the number two agreement. Can you tell me whether it is intended there would be a number three, or can you tell me that you are confident now that that full suite of employers who, you say, should be considered collectively in the context of a multiple business agreement are now encompassed within the confines of the number one and number two agreement?

PN101

MR DJONEFF: The answer is there will be no number three application, your Honour. We are very confident that we have now captured all employers who are relevant to this agreement and who indeed are presently applying and have been applying this agreement to the dental employees for the best part of a year.

PN102

VICE PRESIDENT ROSS: We would indicate that we are satisfied, subject to something I will say in a moment, that the relevant statutory tests have been met and we are also satisfied in relation to the public interest considerations that it would be in the public interest to certify the agreement. The reservation is in relation to section 170LJ(1)(a) and that is the issue that we referred to earlier; that is the requirement for the CPSU to have at least one member employed in each of the businesses respondent to this agreement. We will await your advice on that, Mr Townsend and reserve our decision in relation to this matter. We do not propose adjourning - we will remain in place and - or we will adjourn but will remain in place and call the next matter on.

ADJOURNED INDEFINITELY [1.27pm]