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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 2, 16 St George's Tce, PERTH WA 6000
Tel:(08)9325 6029 Fax:(08)9325 7096
TRANSCRIPT OF PROCEEDINGS
O/N WT5849
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
DEPUTY PRESIDENT McCARTHY
AG2003/44
APPLICATION FOR CERTIFICATION
OF AGREEMENT
Application under section 170LK of the Act
by Silver Chain Nursing Association Inc for
certification of the Silver Chain Enrolled
Nurses Agreement 2003
PERTH
10.07 AM, TUESDAY, 4 FEBRUARY 2003
PN1
MR J. BLACKBURN: I appear on behalf of Silver Chain.
PN2
MR D. KELLY: I appear on behalf of the Australian Liquor, Hospital and Miscellaneous Workers Union. With me is MR G. TYRRELL. We appear for the purpose of seeking to be bound to this agreement should it be registered. I have provide a letter, which I understand from your associate you have received, advising the Commission that we seek to be bound by the agreement.
PN3
THE DEPUTY PRESIDENT: Yes.
PN4
MR KELLY: I have also provided that notification to the employer so that requirement of the Act has been met. I have a request from an employee of Silver Chain who will be subject to this agreement. I am happy to provide a copy of that written request along with some materials which identifies that the person who signed the authorisation is actually a member of the union and I am happy to provide that.
PN5
THE DEPUTY PRESIDENT: If you can provide that to me, Mr Kelly, and I will place it on the record just for the sake of completeness.
PN6
MR KELLY: Yes, that is - and, you know, it certainly is our request that it not be divulged to the employer.
PN7
THE DEPUTY PRESIDENT: Yes. Thank you.
PN8
MR KELLY: As I say, we request - it is our intention to be bound by the document, the agreement if it is registered but we would like to make some submissions about whether or not the agreement meets the required tests in the legislation, prior to legislation.
PN9
THE DEPUTY PRESIDENT: Well, are you seeking intervention?
PN10
MR KELLY: We are intervening for the purposes of being bound.
PN11
THE DEPUTY PRESIDENT: So you are - you have a request from an employee - - -
PN12
MR KELLY: Yes, that is correct.
PN13
THE DEPUTY PRESIDENT: - - - that they want the union to represent them. You have also a request from an employee that is a member of yours that they want the organisation to be bound by the agreement. So there are two separate requests or one request?
PN14
MR KELLY: Well, Deputy President, I have only provided you with one request, and that is that we be bound to the agreement. Now in my view that is sufficient to allow us to be recognised as an intervener under section 43. Section 43(2)(b) talks about granting intervention to an employer - sorry, an employee organisation that proposes to be bound by the agreement. So in our view the one request is sufficient, firstly, to be granted status as an intervener and, secondly - - -
PN15
THE DEPUTY PRESIDENT: So you - if I can just interrupt there. So you are requesting under 43(2)(b) not under 43(2)(a)?
PN16
MR KELLY: No, that is correct.
PN17
THE DEPUTY PRESIDENT: Yes.
PN18
MR KELLY: Now as I have indicated we also intend to make submissions as to whether or not the agreement meets the necessary tests and we say we are entitled to do that. The Commission has a statutory obligation before registering any - - -
PN19
THE DEPUTY PRESIDENT: But do you have any request by any employee to intervene under 43(2)(a)?
PN20
MR KELLY: Deputy President, we do. We have a separate authorisation requesting that we simply intervene. Now - - -
PN21
THE DEPUTY PRESIDENT: Well, do you have - I will put it more accurately, do you have any request by an employee under - as a person under 170LK(4) for your organisation to represent them?
PN22
MR KELLY: Yes. We have a - other than for the purposes of being bound?
PN23
THE DEPUTY PRESIDENT: Yes.
PN24
MR KELLY: We have an authorisation from an employee who simply seeks that we be - that we intervene to be heard in the registration of the agreement. Yes, that is a separate request. But our position, Deputy President, would be that the authorisation that I have provided you, which requests that w be bound, is sufficient for you to grant this intervention under 43(2)(b).
PN25
THE DEPUTY PRESIDENT: Well, there is no question about that.
PN26
MR KELLY: Yes.
PN27
THE DEPUTY PRESIDENT: But it is a question of what then that intervention can allow you to put submissions on. That is what I will need to consider, I think. So it is up to you whether you will be seeking intervention under 43(2)(a) and 43(2)(b) or whether you are seeking intervention under 43(2)(a) only or 43(2)(b) only.
PN28
MR KELLY: Deputy President, our position at this pint would be that we seeking only to intervene under section 43(2)(b).
PN29
THE DEPUTY PRESIDENT: Yes.
PN30
MR KELLY: Now, our position is that as a party before the Commission there is no prohibition in the Act, either implied or explicit, which would require us to sit at the bar table mute on the issue of whether or not the agreement meets the statutory tests. The Commission has an obligation to inquire into the agreement, its terms and the circumstances under which it was made, in order to determine whether or not it meets the requirements of the Act prior to registration. Now we have some submissions and some evidence that we would like to put before you and as a party to these proceedings we believe the Commission would not be performing its - - -
PN31
THE DEPUTY PRESIDENT: Well, you are not a party to the proceedings and even if you were to be bound by the award you wouldn't be party to the agreement. You would be bound by the agreement. The persons who are parties to the proceedings are those in 43(2)(a) but you are - - -
PN32
MR KELLY: We would be an intervener under section 42(b). Now - - -
PN33
THE DEPUTY PRESIDENT: 43(2)(b).
PN34
MR KELLY: Yes.
PN35
THE DEPUTY PRESIDENT: 43(2)(b).
PN36
MR KELLY: Sorry, yes, 43(2)(b). Now, Deputy President, we believe it would be an extraordinary course for the Commission to take to have an application before it which is for registration where the Commission is required to inquire as to whether the statutory requirements have been met prior to registration for the Commission to say, yes, you are going to be bound by this agreement; should it be registered. You have met the test for that to occur but we are not going to hear from you as to whether or not those statutory requirements have been met. That, in our view, would be a course for the Commission to take which is nonsensical.
PN37
THE DEPUTY PRESIDENT: Well, the difficulty I have, Mr Kelly, is if the intervention is granted under 43(2)(b), that is an intervention based on an intention to be ground by an agreement but then for a party - for the intervener to then say, well, we want to be bound by an agreement but we don't want it to be made, seems a little nonsensical as well.
PN38
MR KELLY: Deputy President, there is no - I beg to differ. We wish to be bound by this agreement and we make no bones about that. If this agreement is going to be made - sorry, registered, we wish to be bound by it and that is an entitlement we have under the statute.
PN39
THE DEPUTY PRESIDENT: Yes.
PN40
MR KELLY: There is nothing in the statute which says that a party who wishes to be bound by an agreement cannot make submissions as to whether or not it meets the test. Mr Blackburn here, his organisation obviously wishes to be a party to this agreement; he wishes the agreement to be registered. He will make submissions about whether or not it meets the test.
PN41
THE DEPUTY PRESIDENT: Yes.
PN42
MR KELLY: We are not, saying, Deputy President, that you should not register the agreement, that is a decision for you to make on the information before you.
PN43
THE DEPUTY PRESIDENT: Yes.
PN44
MR KELLY: Our position is unequivocal, we wish to be bound by the agreement if the agreement is registered. We wish, however, to make submissions on that point.
PN45
THE DEPUTY PRESIDENT: Yes, well, I will hear from Mr Blackburn. I gather you are also seeking a waiving of rule 49(2)(c) as the requirement to lodge statutory declarations if you seek to be bound?
PN46
MR KELLY: Deputy President, I am not aware that that was a requirement, that was not a provision that we have been required in other proceedings of this nature in order to be bound but we can provide statutory declarations if you wish.
PN47
THE DEPUTY PRESIDENT: Well, if you seek for that rule to be waived I will waive it.
PN48
MR KELLY: Well, we seek for that rule to be waived.
PN49
THE DEPUTY PRESIDENT: Thank you.
PN50
MR BLACKBURN: Your Honour, we would appreciate being heard on that point before you - - -
PN51
THE DEPUTY PRESIDENT: Well, I will hear from you, Mr Blackburn, I won't waive it just yet.
PN52
MR BLACKBURN: Thank you, your Honour. Your Honour - - -
PN53
THE DEPUTY PRESIDENT: I will hear from you on a number of points including the interventions sought, or intervention sought.
PN54
MR BLACKBURN: Yes, your Honour, we were not aware before this morning that the union would apply to be bound by the agreement and therefore unfortunately I have not brought with me the decision of Deputy President Polites in which he expressed the view - and it has been followed in a number of other cases - that where a union applies to intervene in order to be bound under section 43(2)(b) the submissions of the union are to be confined to the question of whether it meets the requirements of section 170M(3). And so the authorities, including that decision of Deputy President Polites - and the name of the case escapes me, but I am sure that your Honour will be aware of it - don't support the union's view.
PN55
It can apply to intervene under section 43(2)(b) and then make wide ranging submissions in opposition and I apologise for not having a copy of that decision with me today but I did not anticipate that 170M would arise because, as I say, we didn't receive the letter from the union until yesterday. Now, I don't know whether - perhaps the union is aware of Deputy President Polites' decision and sees this as an opportunity to test it and perhaps provide a ground of appeal, but that is the state of authority at the moment, and if your Honour required, later in the day we would be able to provide a copy of that decision to you.
PN56
Your Honour, on the question of the waiver of rule 49(2)(b)(c), we are aware of the decision of the Full Bench in the City of Wanneroo case where the Full Bench in that case decided that the rule ought to have been made in the circumstances of that case and I will hand up a copy of that decision.
PN57
THE DEPUTY PRESIDENT: I am familiar with it, Mr Blackburn.
PN58
MR BLACKBURN: Yes, yes, I will provide the union with a copy then, your Honour. What the Full Bench did say in that case at paragraph 25 was that in the circumstances of that matter they were prepared to grant the ASU relief and those circumstances included the fact that there was no objection from the City of Wanneroo to the binding of the ASU to the agreement. And we say that in this case there is certainly a strong objection particularly if the union's intention is to in fact seek to defeat the agreement by any means that it may.
PN59
So we do object to the rule being waived. The circumstances, it seems to us, are not the same as in the City of Wanneroo case because in that case there was consent to the ASU being joined as a party - sorry, being joined as an organisation bound by the agreement. Your Honour, those are the submissions we have on the moment just on this particular - - -
PN60
THE DEPUTY PRESIDENT: You are also seeking waiver of one of the rules, I understand?
PN61
MR BLACKBURN: Which one would that be, your Honour?
PN62
THE DEPUTY PRESIDENT: The listing period.
PN63
MR BLACKBURN: Well, your Honour, that is a bit doubtful because the particular rule - if I could go to it - I don't think expressly refers to interveners. If your Honour could perhaps remind me of the particular rule then I will be able to find it.
PN64
THE DEPUTY PRESIDENT: 74(1).
PN65
MR BLACKBURN: Thank you. The rule expressly refers - asks the Commission to fix a time and place at least 10 working days after a registrar is able to give notice to the parties to the proceedings or a party required to serve notice on another party. So it talks about parties to the proceedings and not interveners so we would say that that rule is not strictly applicable.
PN66
THE DEPUTY PRESIDENT: Yes, thank you, well, I will grant intervention, Mr Kelly, for the purpose of rule 43(2)(b). I will first hear from Mr Blackburn with respect to - and in so doing I waiver rule 49(2)(c). I will hear from Mr Blackburn first about the basis for certification and then I will consider as to whether there is any restriction on what you may address the Commission on but I will do that once I have heard from Mr Blackburn.
PN67
MR BLACKBURN: Thank you, Commissioner. Commissioner, you have a copy of the agreement and also a copy of the affidavit - the statutory declaration of Mr Bradshaw.
PN68
MR KELLY: Deputy President, we have not been provided with copies of those and I understand - thank you, Mr Blackburn, that is the statutory declaration.
PN69
MR BLACKBURN: You have got a copy of the agreement.
PN70
MR KELLY: I have got a copy of the agreement, so this is just the statutory declaration and a statement from Mr Bradshaw. Did you say - - -
PN71
THE DEPUTY PRESIDENT: That is the statutory declaration of Mr Bradshaw.
PN72
MR KELLY: Oh, okay, all right, I am obliged.
PN73
THE DEPUTY PRESIDENT: Well, perhaps, Mr Kelly, at this point, I will hear fully from Mr Blackburn. If there is any request for provision of documentation following hearing from Mr Blackburn I am sure you will make it but this is a proceeding where Mr Blackburn is representing the Silver Chain and they are seeking the certification of an agreement and that is what I am hearing from Mr Blackburn at the moment.
PN74
MR BLACKBURN: Your Honour, just for your information, the reason why that material wasn't provided to the union previously is that it has refused to confirm to us in previous discussions whether it was going to intervene today. It has also refused to provide to us the basis of any objections that it proposed to make or to give us any notice of the objections that it proposed to make. Mr Kelly did indicate last Friday that there were a raft of reasons why this agreement could not be certified, but he was not prepared to disclose any of those, and when I expressly asked him whether that meant he intended to intervene, he refused to answer.
PN75
MR KELLY: Deputy President, I don't wish to rise and interrupt continually, but Mr Blackburn is making a number of assertions which firstly he is referring to discussions which took place in a section 32 or 44 conference before Commissioner Scott in the State Commission. I certainly don't wish it - I don't believe it is appropriate that the contents of those conferences be divulged in open court, they are private conferences. And secondly, we would foreshadow that we would like an opportunity to respond if you are going to entertain such submissions from the bar table.
PN76
THE DEPUTY PRESIDENT: Yes, thank you, Mr Kelly. Look, Mr Blackburn, I am sure you will go immediately to the certification issues and not things that might be critical to other issues, but they are not critical to the certification.
PN77
MR BLACKBURN: Yes, your Honour.
PN78
THE DEPUTY PRESIDENT: And if you can confine yourself to the certification issues, I am sure this will proceed a lot more quickly.
PN79
MR BLACKBURN: Yes, your Honour. Your Honour, once the application was filed, you did, through your Associate, provide Silver Chain with a list of questions arising out of a report that your office or the Commission had prepared on the agreement, and - - -
PN80
THE DEPUTY PRESIDENT: Actually, I prepared them, Mr Blackburn.
PN81
MR BLACKBURN: Yes, very good, your Honour. If I could hand up a list of answers to that and seek to have it marked as an exhibit.
EXHIBIT #A1 LIST OF ANSWERS TO QUESTIONS PREPARED BY DEPUTY PRESIDENT
PN82
THE DEPUTY PRESIDENT: Rather than you go through all of those issues, Mr Blackburn, I think if you could confine yourself to probably item 5.2 if you want to expand on any of that; there is no necessity for you to if you don't wish to. Item 6.1 - and 6.1, and with respect to the item on annual leave and the capacity to cash that out, if you can also address me on that.
PN83
MR BLACKBURN: Yes. Your Honour, in respect of item 5.2, we are happy to provide the Commission with some further detail on that. As I think was indicated in the papers, their ballot was conducted by HLB Mann Judd, who are Silver Chain's auditors, in order to ensure the independence of the count and confidentiality of the count. That resulted in 50 votes for and 36 against; six votes were set aside as invalid and Mr Tyrrell, who is with us today, was present at that along with Jane Reid, another officer of the union, who is also present today.
PN84
Six votes were set aside as invalid. Two had arrived out of time and there was no contest as between any party there that those votes should not counted because they were out of time and therefore invalid. One provided no name or address on the reply-paid envelope which meant that the returning officer couldn't determine whether that person was legitimately entitled to vote. Three were provided by persons whose name didn't appear on the final list of persons eligible to vote.
PN85
Now, as I have indicated there, and Mr Tyrrell and Mr Kelly wouldn't be aware of this, those three votes were put to one side by the Returning Officer. A subsequent inquiry by Silver Chain revealed that two of three persons ought to have had their vote counted, and one had changed her name during the voting period and so that the name that was on the envelope that was returned was not the same as the name on the final list of Silver Chain employees.
PN86
The other was a new employee who had been employed during the ballot period who had been given a voting pack on appointment, but her details hadn't been provided to payroll in sufficient time. The third person was a casual who had not worked for Silver Chain since November and who is engaged on the basis that each contract is a separate contract of employment. So that left us with two additional votes that though they wouldn't have affected the ballot outcome, ought nonetheless to have been counted. So Silver Chain at that point advised the Returning Officer and those votes were counted, but in order to maintain the confidentiality of the votes, the Returning Officer did not advise Silver Chain of the final count.
PN87
Now, I have some documents, your Honour, to hand up in relation to the process, and before my friend gets too excited, to say that the decision in Magnet Mart - the Full Bench decision in Magnet Mart is authority for the proposition that even though votes may be counted after a valid majority has been found and declared and an application for certification made, it doesn't affect the validity of that application. Your Honour, I will hand up firstly a document which sets out the process which Silver Chain followed in identifying employees eligible to vote and in balloting employees.
EXHIBIT #A2 DOCUMENT IDENTIFYING EMPLOYEES ELIGIBLE TO VOTE AND BALLOTING EMPLOYEES
PN88
MR BLACKBURN: You can see that it begins with the preparation of a first staff listings report, producing a report of enrolled nurses eligible to vote. There is then the information packs and material mailed out to enrolled nurses in accordance with that first staff listing report. Spares are retained for issuing to new employees if required. The note next to 20 December to 9 January indicates that any persons employed after the initial mail-out must be given an information pack on commencing employment if they are likely to be subject to the agreement. So in other words, any new employees are given the material and therefore an opportunity to vote.
PN89
We then run through the 14-day consideration period. On 9 January a second staff listings report was prepared. This report includes any new employees and removes any employees who have terminated their employment. The second staff listings report is provided to the auditors. The auditors acting as the Returning Officers posted the ballot papers to all employees listed in that second report. There was a how to vote instruction sheet, a reply paid envelope and a ballot paper. I will hand up a copy of the instructions provided to employees, your Honour.
EXHIBIT #A3 HOW TO VOTE INSTRUCTION SHEET PROVIDED TO EMPLOYEES
PN90
MR BLACKBURN: Now, as you can see, your Honour, from the first one, Instructions How to Vote, employees were provided two envelopes and a voting paper and they were asked to mark the voting paper yes or no, and the voting paper is stapled - it is on the back of that page. They are asked to mark one box on the paper, then to seal the voting paper in the voting envelope, and then to put the voting envelope in the reply paid envelope, and then to put their name and address on the reply-paid envelope and then sign it, and then mail the reply-paid envelope to the auditors.
PN91
Then the procedure for counting the vote is to firstly open all the reply-paid envelopes and check the names on the reply-paid envelope against the filing - list of persons eligible to vote. Once that is done, the reply-paid envelopes are put to one side and the voting envelopes, which don't disclose who the person voting is, are then opened and counted so there is absolute anonymity in that process and I am sure Mr Tyrrell will be able to say otherwise if he felt that wasn't the case.
PN92
So that is the process that is undertaken in order to maintain the confidentiality of the vote. Those are the papers sent out on 10 January. Some spare ballot papers were then provided to Silver Chain to give to any new employees along with the information packs; that is, people employed before the final count that is set out at 10 and 22 January. The vote closed on 22 January and was - a final staff listings report was then prepared on 22 January, adding any new employees and removing any terminated employees, and only including those casuals who worked during the voting period.
PN93
As I have indicated previously, casuals are employed on the basis that each engagement is a separate engagement. Your Honour, as evidence of that, I will hand up a copy of Silver Chain's casual workplace agreement or contract of employment.
PN94
MR BLACKBURN: This document sets out at 5.2 that:
PN95
Separate contracts of employment will arise on each acceptance by the employee of each offer of work.
PN96
And at 5.2.3:
PN97
Each offer and acceptance will constitute a separate and distinct contract of employment from any subsequent or prior contract of employment.
PN98
So there are no continuing casuals, to use that phrase, and the position that was taken in accordance with authority was that if a casual engaged on terms such as that was not employed during the voting period - that is, at the time the agreement was made - then those casuals would not be eligible to vote.
PN99
The final staff listings report was provided to Mann Judd and was used as the basis for determining which employees were eligible to vote, and as I have indicated, there were those two employees whose names could not be found on the final staff listings report, one because they had been recently employed and the details had not been provided to payroll in time, and the other because they had changed their name and their name appeared - it was a different surname on the voting sheet.
PN100
Your Honour, I have copies of two letters provided to Silver Chain from the auditors.
PN101
THE DEPUTY PRESIDENT: Just on that casual issue, Mr Blackburn. I think your statutory declaration showed 34 casuals and the rest being either part-time or full-time presumably.
PN102
MR BLACKBURN: Part-time except for one, yes, your Honour.
PN103
THE DEPUTY PRESIDENT: Thank you.
PN104
MR BLACKBURN: Yes. Your Honour, I have two letters from the auditors. The first is a letter advising of the initial count.
PN105
MR BLACKBURN: And the second is a letter confirming the situation that arose with respect to the two votes that were counted later.
EXHIBIT #A6 LETTER FROM AUDITORS RE TWO VOTES THAT WERE COUNTED LATER
PN106
MR BLACKBURN: Now, the initial document, A5, shows the results of the ballot, 50 to 36. A further break - so 58 per cent yes vote. A further breakdown is provided on the following page which indicates that 134 ballot papers were distributed, 92 were returned, representing we think a very good response rate of 69 per cent. A6 confirms the submissions that I have made in relation to those two employees whose votes were not counted on the day. The auditor says on the second last paragraph on that first page:
PN107
On the basis of the above information, I am satisfied that both Janice Shields and Jacqueline Maughan ought to have their votes counted and I have accordingly opened their ballot papers and amended the final count ...(reads)... and if required I would be happy to provide the final count to Deputy President McCarthy for his eyes only.
PN108
Your Honour, the cases that are referred to - - -
PN109
MR KELLY: Deputy President, apologies again for rising, but Mr Blackburn is obviously providing these letters without the authors here to attest to the authenticity. Now, at this point in time I don't want my silence to be taken as acceptance of that fact. I am not saying at this point that we do object, but I simply wanted to foreshadow that that may be the case.
PN110
THE DEPUTY PRESIDENT: Yes, I have noted that, thank you, Mr Kelly.
PN111
MR BLACKBURN: Your Honour, the decision that I referred to in the papers as indicating that the process that was followed ought have no effect on the ballot is the decision of the Full Bench in Magnet Mart which is print number 923848. I will hand up a copy of that. This was a case in which the - probably if we go to paragraph 11 and pick up the facts of the matter conveniently. The employer had provided a notice to employees saying that a staff vote would be held from Friday 22[sic] to Sunday 23 December at each store. And the following paragraph said:
PN112
If you are not able to attend work on 21 to 23 December, you can request a postal ballot, and all postal ballots must be returned by 31 December to be counted in the vote.
PN113
Now, what then happened is set out in the following paragraph:
PN114
The votes that were cast in the stores between the 21st and the 23rd were counted and on 28 December, three days before the time for the return of the postal votes, the employer issued a memo to staff indicating that there were sufficient votes approving the agreement to enable the application for certification to be made and that was because the number of outstanding postal votes could not have affected the result.
PN115
Now, that application was made on 28 December. So in other words, a valid majority was declared and an application for certification was made before the postal votes had been counted. Then further - as appears from perhaps not this decision, but the decision below, a further 10 postal votes were counted when they came in on 31 December. Now at paragraph 14 the appellant - the agreement at first instance was refused certification by the Commissioner who thought that this invalidated the application. At paragraph 14:
PN116
The employer submitted on appeal that the agreement was made with a valid majority of employees employed at the time on 23 December. It was made on that day because the difference between yes and no votes that were counted was more than the number of postal ballot votes that were issued and everyone who had not voted by 23 December received a postal ballot.
PN117
So in other words, while there were still a number of votes to be counted, there was a valid majority on 23 December and therefore the agreement was made on that day. Now, there is still, of course, a residual issue about the entitlement of those people in the postal ballot to have their votes counted, and we will see how the Full Bench dealt with that. At paragraph 23 the Full Bench says:
PN118
Subsection 170LK requires that the agreement be made with a valid majority of persons employed at the time whose employment will be subject to the agreement.
PN119
The Full Bench says:
PN120
There was a valid majority on 23 December. The agreement in terms of the Act was made on that day.
PN121
Put in the alternative, a valid majority made the agreement on 23 December and the valid majority referred to the definition in section 170LE. This was because both the requirements in 170LE(c) and (d) were met at that point. Now, your Honour, if I could take your Honour to section 170LE at paragraphs (c) and (d) you will see that there are two requirements there for a valid majority that are relative to this particular point. Firstly, there is the requirement the employer gives all the persons so employed a reasonable opportunity to decide whether they want to make the agreement; and secondly, if the decision is made by vote, a majority of the persons who cast a valid vote decide or genuinely decide that they want to make the agreement.
PN122
Now, the Full Bench is saying, as we will see in a moment, that both those requirements are met. Firstly, they say paragraph (c) was met. All persons were given a reasonable opportunity because the postal votes were counted later. Paragraph (d) was met because a majority of persons who cast a valid vote decided to make the agreement. Going back to paragraph 24 of what the Full Bench said:
PN123
This was because both of the requirements in 170LE ...(reads)... The valid majority came into existence on that day.
[10.43am]
PN124
So, your Honour, in this case clearly a valid majority came into existence on the day of the count which was 23 January and the application for certification was lodged on the 24th. Two additional votes were counted some five or so days later as set out in the exhibit, A6, so that all the employees who were entitled to vote had their vote counted and of course those additional votes could not have affected the outcome. So we say that the ballot - that concludes my comments on the ballot process, your Honour, and we say that amply meets the requirements of the Act in that regard.
PN125
THE DEPUTY PRESIDENT: There are two issues additional that I would like you to address me on, Mr Blackburn. One is how you can - whether you can address me on whether the people who were - workers, employees who were participating in a ballot had a realisation they were voting for section 170LK agreement as against a 170LJ agreement and secondly, how I can be satisfied that the provisions of 170LU(2)(a) do not prevent me from certifying the agreement, that is the coercion provisions.
PN126
MR BLACKBURN: The what provision, sorry?
PN127
THE DEPUTY PRESIDENT: Coercion. I would appreciate it if you did address me on those.
PN128
MR BLACKBURN: Yes, yes, your Honour, yes.
PN129
THE DEPUTY PRESIDENT: If you need time to consider those I will provide you with that time or get instruction.
PN130
MR BLACKBURN: Your Honour, in respect of 170LU(2)(a), I am not aware that it has been suggested that there was any conduct that - - -
PN131
THE DEPUTY PRESIDENT: I am not saying it has been suggested, I am just wanting some assurance from you that there hasn't been any conduct that could be purported to be conduct of that nature. I am not inferring anything - - -
PN132
MR BLACKBURN: Yes.
PN133
THE DEPUTY PRESIDENT: - - - Mr Blackburn.
PN134
MR BLACKBURN: No, no, no. And part XA, your Honour, is quite broad, there are a number of offences in part XA, is there any - - -
PN135
THE DEPUTY PRESIDENT: I really wanted some submission that there has been no breach of any of the provisions of section - part XA - - -
PN136
MR BLACKBURN: Yes, yes.
PN137
THE DEPUTY PRESIDENT: And whether you can provide me some support for any contention of that nature and I would imagine that is what your contention would be.
PN138
MR BLACKBURN: Yes. If you bear with a moment, your Honour, I will - - -
PN139
THE DEPUTY PRESIDENT: Yes.
PN140
MR BLACKBURN: - - - find some relevant documents.
PN141
THE DEPUTY PRESIDENT: If you want five minutes, Mr Blackburn, I can provide that to you.
PN142
MR BLACKBURN: Thank you, your Honour, yes.
PN143
THE DEPUTY PRESIDENT: I think we will adjourn until you have had an opportunity to identify any documentation you need to. We stand adjourned.
SHORT ADJOURNMENT [10.47am]
RESUMED [11.00am]
PN144
THE DEPUTY PRESIDENT: Mr Blackburn.
PN145
MR BLACKBURN: Yes, thank you, your Honour. If I could hand up three documents please, one being a copy of the notice that was provided to nurses, another being the information sheet provided at the same time and both documents were provided with a copy of a agreement and the third being a subsequent to staff.
PN146
MR BLACKBURN: Which is which your Honour?
PN147
THE DEPUTY PRESIDENT: In your sequence, Mr Blackburn, the letter of 20 December will be A7, that is the notice; the letter headed "Information Sheet" will be A8; and the notice to staff on 24 December will be A9.
PN148
MR BLACKBURN: Your Honour, I have provided the union with a copy of A9. I believe they have copies of A7 and A8 because they were produced other proceedings. They requested copies and they were made available to them.
PN149
THE DEPUTY PRESIDENT: All right.
PN150
MR KELLY: Your Honour, if I could just ask that we be given an opportunity to locate them before Mr Blackburn addresses your Honour.
PN151
MR BLACKBURN: Thank you, your Honour. Your Honour, the notice provided to all employees on 20 December does not, it appears, expressly refer to section 170LK though it is submitted that to many employees that would have little significance, but it does, in our view, clearly set out that this is an agreement between the employer and the employees, and not between the employer and the union. It begins by saying:
PN152
As you are aware, since June this year Silver Chain has been endeavouring to negotiate an agreement with the union to apply to enrolled nurses ...(reads)... Accordingly, Silver Chain now proposes to make an agreement with its enrolled nurses.
PN153
And then a couple of paragraphs down:
PN154
To make the new agreement and get the pay rise to you as soon as possible, it is necessary for Silver Chain to hold a ballot of all its enrolled nurses ...(reads)... if the majority of those who vote vote in favour of making it.
PN155
Now, your Honour, while section 170LK is not identified, we say that the processes clearly set out there is clearly indicative in that notice that negotiations with the union have broken down and that Silver Chain now proposes to make an agreement with its staff, and that that agreement will be made if the majority of those who vote vote in favour of making it. There is then in the information sheet, your Honour, which is A8 - at the back of the information sheet there is a page 4, there is a section beginning "What happens next" and it is again restated that if the majority of those who vote vote in favour of the agreement, Silver Chain will apply to the Commission - - -
PN156
THE DEPUTY PRESIDENT: Sorry, where is that again, Mr Blackburn?
PN157
MR BLACKBURN: On page 4 of the information sheet, your Honour. Again, the same statement appears that if a majority - under item 1, What happens next:
PN158
If a majority who vote vote in favour of the agreement, Silver Chain will immediately apply to the Commission to have the agreement certified.
PN159
There is then at the end of the page reference to staff presentations for anyone that has any questions about the agreement, and those staff presentations were scheduled and held, and the timetabling of those appears in A9 where you can see that they were ten staff presentations held attended - all attended by Mr Bradshaw; yes, Mr Bradshaw attended all of those to answer questions from employees. There was also some clarification of Silver Chain's proposed use of AWAs, given the sentiments that have been expressed by the union to various employees.
PN160
Your Honour, we say that that ought leave people in no doubt that the agreement was one between Silver Chain and its employees, and that all that was required for it to be made was that a majority of those employees vote in favour of it. It appears - this is something that we were not aware of before today - that section 170LK was not expressly referred to. We say that that does not detract from the fact that - - -
PN161
THE DEPUTY PRESIDENT: I am not saying that it needed to be, Mr Blackburn.
PN162
MR BLACKBURN: Yes, yes.
PN163
THE DEPUTY PRESIDENT: I am just trying to ascertain whether there was sufficient clarity of people knowing what they were voting for.
PN164
MR BLACKBURN: Yes, and we say there is sufficient clarity, and we certainly say there is no requirement in the Act for it to be set out. The Act, in terms of the explanation that is required to be provided to employees, is different from the predecessor. It talks in 170LK(4) - sorry, 170LK(7), it says:
PN165
Before the agreement is made, the employer must take reasonable steps to ensure that the terms of the agreement are explained.
PN166
Now, the first step in that process was document A8 which sets out the terms of the agreement. There is also, as is clear from the end of document A8 again on page 4, there is a question there:
PN167
What if I have questions?
PN168
And there were those staff presentations held, and there was also a special agreement line provided. It was staffed from 9 o'clock to 5 o'clock to answer any queries that employees would have. So there was the initial information sheet, the ten presentations that were held, and an agreement line was also provided for people to ask questions. And the information sheet, as your Honour will have seen, is reasonably comprehensive. It runs to eight pages and, in our view, it adequately sets out in plain English the terms of the agreement which is all that is required to be explained by 170LK(7).
PN169
And by contrast, your Honour, we could look at the provisions of the previous Act. I will hand up an extract from the Industrial Relations Act 1988. We can see that in 170NC(1) the requirement which is set out in paragraph 8(h) - (h), sorry, is that:
PN170
Before the application for approval is made, reasonable steps are taken to inform the employees about the terms of the agreement and to explain to those employees the effect of those terms.
PN171
Now, that second requirement explaining the effect of those terms does not appear in the current Act, and we say that the requirement that is in the current Act is to explain the terms of the agreement, and that has been done, and adequately done, in the documents that have been provided in exhibit A8 and also in A7 for that matter, the notice paper, and also in the presentations and through the process of inquiries.
PN172
Your Honour, in terms of the question that you asked as to whether there was any grounds for rejecting the agreement under 170LU(2)(a), we say that - we deny that there are any scintilla of a matter that could give rise to those matters set out in 170LU(2)(a). The employer certainly did not contravene part XA in the process that it followed, and that process is very transparent for all to see in the documents and we have not been - it has not been suggested to us by the union, nor has there been any evidence to the contrary.
PN173
Your Honour, the next item which I think you asked us to address you on was item 6.1 in the answers. Now, firstly, your Honour, may I convey my sincere apologies to you, both personally and on behalf of Silver Chain, for having misled you in the course of applying for a designation. We stood before you and assured you that there was no relevant award, and it was with some dismay later on that some time after the designation that we realised that, in fact, the State Healthcare Industry Private Superannuation Award remained in force. It is an award which, because of its terms, has been largely ignored in previous years, in recent years, but it is nonetheless an award that remains in force and, as such - - -
PN174
THE DEPUTY PRESIDENT: Yes, that is why, Mr Blackburn, one of the reasons why in the directions I issued on 6 December I very specifically asked you to identify any awards that currently apply and why they do not apply to the employees intended to be covered by the proposed agreement.
PN175
MR BLACKBURN: Yes, that is absolutely correct, your Honour, and yet we missed that one; and I can only apologise to you for that. The error was entirely mine, and it has caused Silver Chain some considerable inconvenience, and also obviously yourself and the time of the Full Bench as well.
PN176
THE DEPUTY PRESIDENT: So I did not have any jurisdiction to exercise, or for you to appeal that I had failed to exercise it, Mr Blackburn.
PN177
MR BLACKBURN: No, your Honour, I was hoping that you would have a sense of humour when the matter was revealed to you. I am pleased to see that you have.
PN178
THE DEPUTY PRESIDENT: Well, I don't know.
PN179
MR BLACKBURN: On the positive side, at least one point of law has now been settled by the Full Bench, albeit unnecessarily so.
PN180
THE DEPUTY PRESIDENT: Yes. It might be that it actually makes sense to have designations after agreements have been made or at the time of application for certification. But, anyway, we are here now on this.
PN181
MR BLACKBURN: Yes. Your Honour, if I could hand up a copy of that now maligned award, the Healthcare Industry Private Superannuation Award. And I should add, your Honour, that the - does it need to be identified, your Honour, at all?
PN182
THE DEPUTY PRESIDENT: Well, I will leave that up to you.
PN183
MR BLACKBURN: Yes.
PN184
THE DEPUTY PRESIDENT: It is the official record of the State Commission, I would imagine. It has been - although it is not the official copy, it is a copy, but on that basis I think if we did mark it, Mr Blackburn.
EXHIBIT #A10 COPY OF HEALTHCARE INDUSTRY PRIVATE SUPERANNUATION AWARD
PN185
MR BLACKBURN: Now, the position - the error was made known to Silver Chain before the time for an appeal from the designation had lapsed so it was still open to Silver Chain at that time to appeal on the basis of representative error. Silver Chain decided not to because it took the view that it was content to have the agreement assessed against the award that had been designated which was a comprehensive award.
PN186
Subsequently, your Honour, your Honour has asked some questions of us and we have answered those questions to the best of our ability. One of the questions obviously is: is it a relevant award, and we say that it is. And the next question was then: do you have the ability to rescind the designation, and it appears to us that you do have and that you probably are also duty bound to do so. But we will go to the first issue of why it is a - - -
PN187
THE DEPUTY PRESIDENT: To actually issue an order rescinding the designation?
PN188
MR BLACKBURN: Well, the High Court decision is not entirely clear, your Honour. In that case the judges, in effect, said that the Tribunal was entitled to simply ignore the previous decision and to go ahead and make another one. I don't - - -
PN189
THE DEPUTY PRESIDENT: But I have got a Full Bench decision directing me to make a determination and a designation.
PN190
MR BLACKBURN: Yes, yes, I appreciate that but I think the decision of the High Court - the Full Bench obviously was not aware of the fact that the designation was based on an application that was incompetent. In effect, the application was made without - was incompetent and, therefore, the designation was made without any jurisdiction at all. And if one applies a decision of the High Court in Bhardwaj, it is no designation at all and your Honour is entitled to - in fact, we say obliged to - ignore it. But if we take first things first, your Honour, and the question of whether the award, marked now as A10, is a relevant award. We can see in clause 3 that it applies to:
PN191
...all full and part time employees employed in any calling in the private healthcare industry by employers listed in schedule A.
PN192
The employers listed in schedule A include Silver Chain Nursing Association which appears halfway down the right hand side on page 8. Sir, the award is binding on Silver Chain and it applies to all full and part time employees, and I will come back to the issue of casuals in a moment. It also talks about applying to casuals where the employment period exceeds three months but - so that would suggest that the award does not apply to - well, it clearly indicates the award does not apply to casuals employed for less than three months, but I will come back to why it is nonetheless a relevant award for those people as well in a moment.
PN193
The award prescribes in clause 5 contributions to - it requires the employer to make superannuation contributions based at 3 per cent of ordinary time earnings. It prescribes an earnings base, in 5 subclause 2 it says:
PN194
For the purpose of the subclause, ordinary time earnings shall include base rate over-award payments...
PN195
etcetera, and that earnings base is valid, of course, for the purpose of the superannuation guarantee charge legislation because it is prescribed in an award. And then it goes on to prescribe how the contributions are to be made, in subclause 5(5):
PN196
The contributions are to be made for each calendar month ...(reads)... in receipt of payments under the Workers Compensation Act.
PN197
Now, that is not an entitlement that is available under the SGC. Of course, the SGC legislation does not require employers to contribute; it simply imposes a charge on employers if they don't, but it does not actually prescribe superannuation contributions in the same way that an award does. And, in any event, the SGC does not apply to employees in receipt of payments under the Workers Compensation Act.
PN198
There is then, following that at clause 8, provisions about the fund and entry into fund, and then choice of fund provisions and the notice that the employer must give employees to inform them that they have a choice of fund in accordance with the requirements of the State Act. So the award does prescribe conditions of employment albeit only in connection with superannuation, and it does that in relation to full and part time employees and casuals employed for longer than three months. Now, on that basis and following the decision of the Full Bench in the AGC certified agreement matter, it is a relevant award.
PN199
I will hand up to your Honour a copy of the AGC case. Now, this was a case, print S2344, in which as appears from the first paragraph on the first page, the third line, the Commissioner at first instance determined that the Westpac employees award 1998, the Westpac Award, was the appropriate award following an application for a designation under section 170XF. Now, over the page at paragraph 2 it is pointed out that:
PN200
Since 1975 AGC had been a respondent to the Clerks (Finance Companies) Consolidated Award 1985.
PN201
And while the award contained a comprehensive set of conditions for employees earning $21,000 or less, the award provisions except those relating to public holidays, annual leave, sick leave and maternity leave did not apply to employees earning more than $21,488. So for employees earning more than $21,488 there were only four conditions of employment prescribed in the award, being public holidays annual sick leave and maternity leave. And on that basis, paragraph 3, the union sought a determination pursuant to section 170XF that the Westpac Award, another award, a comprehensive award, was the appropriate award for applying the no disadvantage test, and the Commissioner so determined. Now, at paragraph 6 the Full Bench says:
PN202
The grounds of the appeal are in summary that the Commissioner should not have made a determination pursuant to section 170XF ...(reads)... for the purposes of the no disadvantage test.
PN203
That is a relevant ground of appeal for the purpose of this discussion. And at paragraph 7 they say:
PN204
The critical issue raised by the appeal is the proper construction of the term "relevant award" ...(reads)... the reasons given by the Commissioner for her decision.
PN205
Paragraph 8:
PN206
So the Commissioner based her decision upon a number of circumstances.
PN207
And the third of those which appears over the page is the one that is relevant to the present discussion and that was that, because of the effect of the exemption provision, the conditions in the award applied in full to only 94 of the 2-1/2 thousand employees who would be subject to the agreement. The remainder of the employees would be exempted from all but four of the award's operative provisions. And the Full Bench says that:
PN208
Although not the subject of an expressed finding, it is important to point out that the case was decided ...(reads)... should be construed in the way it departed from the literal meaning.
PN209
And if I could take your Honour to section 170X, the relevant award is defined there:
PN210
In relation to a person to whom an agreement will apply means ...(reads)... was binding on the person's employer.
PN211
So for relevant present purposes it is an award regulating any term or condition of employment. It does not need to be a comprehensive award.
PN212
THE DEPUTY PRESIDENT: So, Mr Blackburn, paragraph (b) of that definition, what is - have you any submission to make on what the initial day of the agreement means?
PN213
MR BLACKBURN: The day of certification, I would have though, your Honour, or the day that it is expressed to be certified - the initial day is described immediately above as the day on which it is certified.
PN214
THE DEPUTY PRESIDENT: So it is the certification date?
PN215
MR BLACKBURN: Yes.
PN216
THE DEPUTY PRESIDENT: Yes. It is quite specific there, isn't it?
PN217
MR BLACKBURN: Yes. So the question really was whether the parties accepted what the literal meaning of the term relevant award was, or the argument was whether, in fact, it should be construed literally given that it could result in an award with only one or, in this case, four conditions of employment being treated as a relevant award. The Commissioner at first instance obviously felt that a literal construction was not appropriate and proceeded to ignore what was strictly the relevant award and designated the Westpac Award, as we have seen. Now, at paragraph 14 the Full Bench says:
PN218
We think that the Commissioner's construction is erroneous. It involves adding an extra element to the definition ...(reads)... which in this respect are unambiguous.
PN219
And then at paragraph 16:
PN220
For these reasons, we have concluded that the decision under appeal involved a significant error as to jurisdiction.
PN221
Now, your Honour, there are two points I would draw from that. Firstly, that the Full Bench found that the award which contained only four conditions of employment for the majority of employees was nonetheless a relevant award, and the Commissioner at first instance should have so found according to the literal meaning of the term relevant award. But the second issue, which is relevant for present purpose today, is that the Full Bench has clearly categorised - and I don't think there is any question about this, but they have clearly categorised the making of a designation.
PN222
The designation of a - the determination of a designated award in circumstances where there is a relevant award as a significant error as to jurisdiction is a jurisdictional error, and that is set out in paragraph 16 where it says:
PN223
The decision under appeal involves a significant error as to jurisdiction ...(reads)... the Commission has jurisdiction to make a determination pursuant to section 170XF.
PN224
And that is what occurred, your Honour, in the matter before you where you, as a result of the submissions that were put to you, was led into making an error as to jurisdiction, you found you had jurisdiction to make a determination where, in fact, there was none because there was a - - -
PN225
THE DEPUTY PRESIDENT: Well, the Full Bench directed me to make a determination, Mr Blackburn, and I followed that direction.
PN226
MR BLACKBURN: Yes, your Honour. The Full Bench was also misled. And the significance of it being a jurisdictional error will appear when we look at the decision in Bhardwaj. Now, your Honour, there is a second issue here and that is that the superannuation award on its face says that it only applies to full and part time employees and casuals engaged for periods longer than three months. Now, it might, therefore, be said: well, it is not a relevant award for casuals engaged for periods of less than three months. And we say that it is, because the definition of relevant award is an award regulating any term or condition of employment of persons engaged in the same kind of work as that of a person under the agreement; and which is also binding on the employer.
PN227
Now, this award is binding on the employer. The only question is, does it regulate a condition of employment of persons engaged in the same kind of work as those casuals? Yes, it does. It regulates the terms and conditions of employment of the full and part time employees. The casuals are engaged in the same type of work; they might have a different type of employment. Their employment is casual as opposed to part time, but the work is the same. And, accordingly, the superannuation award is a relevant award for them as well, even though it does not actually bind them.
PN228
And that is applying again a literal interpretation of the term relevant award which is the matter of interpretation adopted by the Full Bench in AGC. So we say that even for those casuals employed for periods of less than three months, the superannuation award is a relevant award. The key, it seems to us, in this regard is the fact that the relevant award must not only regulate a term of employment of persons engaged in similar work, but it must also bind the employer. And so in this case it is a relevant award, even though it is not actually binding on the employer in respect of casual employees engaged for less than three months.
PN229
Your Honour, the next question that then arises is the question that we have addressed at item 6.1, and that is:
PN230
In view of the identification of the relevant award, do you have an ability to revoke the designation?
PN231
And though you have not expressed it there, I suppose the next question would follow then: are you either bound to or should you? Now, as we have indicated there, the relatively recent decision - well, it is now 12 months old - of the High Court in the Minister for Immigration and Multicultural Affairs v Bhardwaj, which I will hand up a copy of, (2002) High Court Authorities, number 11, given on 14 March 2002.
PN232
In this case, your Honour, a majority of the High Court - what occurred in this case was that the Tribunal was hearing an application - perhaps if we go to the first page of his Honour, Gleeson CJs decision where the circumstances are set out there. At about the fifth or sixth line down the Tribunal received - sorry, it involved a person whose student visa was cancelled by a delegate of the Minister, and who then applied to a tribunal for review of that decision to cancel his visa. The application was received by the Tribunal.
PN233
The Tribunal listed the matter and, on the day before, the Tribunal received from the agent for the person applying for the review a letter stating that that person was ill and would not be able to attend the next day. And by administrative oversight, the letter did not come to the attention of the Tribunal which then proceeded to hear the matter the next day, decided against the student and informed him of that decision and gave, as the reasons for that decision, that he had not put any material before them to indicate why the cancellation of the visa was unfair or inappropriate.
PN234
Now, when the student was informed of the decision, the attention of the Tribunal member was drawn to the letter which was then found, and a new hearing date was arranged, and the Tribunal heard the explanation of the conduct which had resulted in the cancellation of the visa, and revoked the cancellation. And at paragraph 3, his Honour Gleeson CJ says:
PN235
The issue that now arises concerns the capacity of the Tribunal to proceed as it did.
PN236
And at paragraph 4:
PN237
The Minister, the appellant, brought proceedings in the Federal Court seeking the setting aside of the October decision ...(reads)... in respect of the same application and was functus officio.
PN238
Now, the various judges in differing decisions with the exception of Kirby J, the other six judges, have all held that - with slightly different interpretations on some of the decisions, but the majority have clearly held that there is no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. What they have said is that:
PN239
A decision that involves jurisdictional error is one that lacks foundation and is properly regarded in law as no decision at all ...(reads)... to decide the matter afresh.
[11.32am]
PN240
And as we will see in this case what we say is that Silver Chain's application for a designated award was incompetent because there was already a relevant award in place and there was therefore no application before you. The determination that was subsequently made was made in excess of jurisdiction as can also been seen from the AGC case we just looked at. And, accordingly, we say that you would be entitled to treat that determination as no determination at all and to, in effect, ignore it.
PN241
And as we will see we say the position is even stronger here where that decision was made as an incident in dealing with other issues. That decision was made as a precursor to this hearing. What we say is that there are no provisions in the Workplace Relations Act which alter the general law position so as to require you to treat that designation attended by jurisdictional error as it is was binding until set aside. And on the contrary we say that the Act requires you to perform your functions in a way that avoids unnecessary technicalities.
PN242
If we go, your Honour - do you wish me to go through the Bhardwaj's decision, the various judgments?
PN243
THE DEPUTY PRESIDENT: No.
PN244
MR BLACKBURN: We refer in the answers, your Honour, to section 98A of the Act which requires you to perform your functions in a way that avoids unnecessary technicalities. In Bhardwaj a similar provision was relied upon by Gleeson CJ and averted to by other members of the court in ascertaining whether the statute in that case permitted or prohibited reconsideration in the circumstances that had arisen. And, further, we say that in the present case you are not only entitled to ignore the earlier determination but you would be bound to do so, it seems to us, given the statutory duty to assess the agreement against relevant awards.
PN245
And, similarly, in Bhardwaj the judges found that the Tribunal was not only entitled to ignore the earlier decision it was duty bound to do so and to decide the matter according to the Act. Your Honour, we think the position is clear. As we say, it is a matter of considerable regret to Silver Chain and myself that this has arisen and we think the position is reasonably clear. We also say that in any event the employees the subject of this agreement are with one exception only that we have been able to find, and I will come to that when I come to the issue of no disadvantage, are advantaged - they are not disadvantaged even if the South Australian agreement - award, rather, were applied in full.
PN246
They are significantly better off in terms of the movement from their existing conditions to what is proposed under the agreement. The only significant entitlement which is reduced under the designated award is the 12-1/2 per cent afternoon shift penalty. And when I come to that issue you will see that what we have done, what Silver Chain has done is it has canvassed the entire number of its community enrolled nurses to see who in fact works late shifts. It has identified four employees that did and it has done a payroll comparison comparing the proposed agreement with the designated award in relation to those four employees and only one of those came out disadvantaged in the sense, if you like, against the notional award - the designated award.
PN247
So what we would say is that given that that - firstly, the designation ought be revoked in any event and, secondly, that even if it was not we would say that the public interest is very much in favour of making the agreement notwithstanding that, on a strict application, that one employee could be shown in the 16-week pay period that was used to be worse off versus - in comparison with the designated award. And that was purely because that employee worked a very large number of afternoon shifts. And I will come to that question when we deal with the issue of no disadvantage.
PN248
Your Honour, the last matter that you specifically asked me to address you on is the issue of annual leave. Now, as I have indicated in the answer to your questions, we do agree that the minimum conditions of employment act as a relevant law to which you ought have regard for the purpose of section 170XA(2). But it is our submission that a clause such as one we propose which allows employees who elect to cash in more than 50 per cent of annual leave is not a reduction.
PN249
That is because the clause is only activated by the employee at their own request. It is purely a facilitative provision which employees are free to use or ignore according to their particular needs. Now, what we said, nonetheless, is that Silver Chain would be prepared to give an undertaking that it will only consent to cashing in to the extent allowable under the State Act if that undertaking were to be required as a condition of certification. However, we would rather not. We would rather address the matter in the same way as it was addressed in proceedings before Commissioner Dight leading to the certification of the Silver Chain Registered Nurses Award - sorry, that should be Silver Chain Registered Nurses Agreement 1997 and the Access Homecare Registered Nurses Agreement 1997.
PN250
Those agreements were subsequently replaced by another certified agreement reached in 2000. But the '97 agreement - in the course of making the '97 agreement Commissioner Dight expressed some concerns about exactly the same provision. I will hand up, your Honour, a bundle of documents which have been stapled together relating to that matter.
PN251
THE DEPUTY PRESIDENT: This will be A11. These are agreements are they?
PN252
MR BLACKBURN: Not entirely, your Honour, there are some other documents behind them.
PN253
MR BLACKBURN: The first page is the decision and order leading to certification which doesn't - clearly refer to the issue of annual leave but does refer to the undertakings given by the employer. Then, your Honour, I endeavoured to get this from the website, the Commission's website - no, sorry, from Osiris I think it was. And I typed in Silver Chain Registered Nurses Agreement and instead of giving me the last clause in that agreement which, then, would have been immediately followed by the annual leave undertakings. Because what happened was Commissioner Dight appended the undertakings that were given to the - or the employer's policy to the agreement.
PN254
And that appears on the third page but it is at the end of the Access Home Registered Nurses Agreement. You can see there that the agreement concludes at clause 31, Disputes Settlements, and then immediately afterwards there is an excerpt from Silver Chain's annual leave policy which says that Silver Chain may consent to requests by employees to cash in their annual leave provided the relevant award makes provision to do so. And then there are criteria set out, on the next page, application for payment in lieu.
PN255
It requires an employee to complete and sign the appropriate form and it then says - this is the policy that Silver Chain implemented at the time and provided Commissioner Dight with a copy of. It then says that:
PN256
Before endorsing the application the supervisor must be satisfied that the employees ability to satisfactorily fulfil the requirements ...(reads)... Is the application to cash in all or part of accrued entitlements?
PN257
It then says:
PN258
If the supervisor approves and countersigns the application the form must be forwarded ...(reads)... Chief Finance Executive have approved and endorsed the form.
PN259
There is then a form that the employee must fill out which asks them to attest, among other things, just above their signature, to say that:
PN260
I know of no impediment that will prevent me from satisfactorily performing the requirements of my job or fulfilling my obligations as an employee under the laws relating to occupational health and safety.
PN261
So that was the policy which was provided to Commissioner Dight in accordance with the undertaking that was given to her and appended to those agreements at the time they were made. Your Honour, on the following page we have the letter that was given to Commissioner Dight at the time of certification confirming the undertaking that was given during the hearing:
PN262
In considering a request by an employee to cash in annual leave the employer shall require ...(reads)... and only grant such requests where it considers it safe to do so.
PN263
And as that letter then said:
PN264
A copy of the policy to be applied will be forwarded to your office within 14 days.
PN265
And that was done. That policy extracted from Silver Chain's policy manual appears, then, on the following pages and that is the one that was, as we have seen, appended and now appears on Osiris. There is then, also, a copy of the forms that employees are required to fill out. your Honour, a few pages on there is Silver Chain's current policy which is the one in somewhat darker type beginning IR - in the right-hand corner identified as IRPOL008. That is the policy that was last reviewed on 6 March 2002.
PN266
And on the second page, under Payment in Lieu of Accrued Annual Leave, you can see that the same issues are addressed and carried on into the new policy. That is, there is a requirement for the General Manager, Finance, to approve it in addition to the supervisor and then before approving the application from the employee the supervisor must be satisfied, etcetera, and the same criteria that appears in the old policy are, again, set out.
PN267
So, your Honour, the other thing we say about this is that it is relevant in considering the occupational health and safety and other issues here that 131 of the 132 enrolled nurses employed by Silver Chain under this agreement are part-time or casual employees. We say that has a significant bearing on the question of their ability to perform their duties and the need for rest and recuperation. It is really a matter for the employee.
PN268
THE DEPUTY PRESIDENT: The difficulty I have, Mr Blackburn, is 170XA(2) refers to any law that the Commission considers relevant and the difficulty I have is if the agreement were to be certified and I were to accede to the request of Silver Chain then, implicitly, I am saying that the minimum conditions of employment legislation in Western Australia I don't consider relevant.
PN269
MR BLACKBURN: No, no, your Honour. We would say the matter can be viewed in a slightly different way. It is a relevant consideration but there is the question of whether you form the view that allowing employees to cash in more than 50 per cent of the leave entitlement is a reduction and we say that given it is at the request of the employee, and only at the request of the employee, then in our view it wouldn't be a reduction.
PN270
THE DEPUTY PRESIDENT: Yes, but then if I consider it to be a reduction then if I am to accede to your request and accept an undertaking, then what I said earlier follows, doesn't it?
PN271
MR BLACKBURN: No, your Honour, because we would say, respectfully, that the question is whether there is a reduction in the overall terms and conditions of employment - - -
PN272
THE DEPUTY PRESIDENT: You are saying it is covered anyway on balance provisions.
PN273
MR BLACKBURN: That is right. Whether you view the Minimum Conditions Act in isolation, obviously if one stood the Minimum Conditions of Employment Act up against the agreement then we say there is a wealth of benefits that will override any disadvantage there. We say that the whole package of the relevant laws and awards looked at in total, on balance, there is no reduction. Your Honour, I think those are the only issues arising out of the answers that you specifically asked me to address. There is some further material that we would like to put to you, in fact, which I think it is necessary for us to put to you.
PN274
You have the affidavit of Mr Bradshaw which sets out in some considerable detail the differences between the agreement and the respective awards, one of which we now say is a designated award that was designated in excess of jurisdiction. In explaining the terms of the agreement to employees Silver Chain was also keen to ensure, in its own mind, that there was no question of any disadvantage to the employees concerned. And to that end it undertook an exercise of comparing pays over a 16-week period.
PN275
Now, it didn't do this for all 132 employees. It did do it for all of the employees covered by the State Enrolled Nurses and Nursing Assistants Award, that is, the 13 employees covered by the State Award. And it also did it in the community nurse area for those employees who were identified as working a large number of shifts, late shifts, and for whom there might therefore be, as a result, some possibility of a nominal disadvantage. If I could hand up, your Honour, a copy, firstly, of a report prepared by Mann Judd which is an audit of those calculations.
PN276
MR BLACKBURN: Now, this audit actually refers only to the calculations in relation to the enrolled nurses covered by the State Award, that is the enrolled nurses employed in nursing homes. As the letter from Mann Judd indicates:
PN277
We report as follows -
PN278
and the background -
PN279
Silver Chain employs a number of enrolled nurses at Alfred Carson and John Mercer ...(reads)... and this calculation is attached as appendix 1 to this report.
PN280
And this is an audit report prepared for Mr Bradshaw and it is addressed, "Dear Mr Bradshaw". It says:
PN281
You have requested that we examine the calculation, appendix 1, and advise whether in our opinion the calculation has been correctly performed.
PN282
And 2.1 they say:
PN283
We attended the association's premises to examine the calculation and we note the following ...(reads)... 10 December 2002 -
PN284
which I believe is eight pay periods, 16 weeks -
PN285
to calculate the employee's award entitlements during that period of time ...(reads)... it has been assumed that the employee worked 60 hours per week -
PN286
60 hours per week? That might be per fortnight, your Honour, I will check that when I go through it:
PN287
It has been assumed that the employee worked 60 hours -
PN288
I assume that is per fortnight -
PN289
during the review period. Any over award payments made to employees have been omitted from the calculations ...(reads)... This point is relevant to leave entitlements and in particular accrued days off.
PN290
Now, your Honour, before proceeding I will just discuss that point there because in a moment I will hand up a second set of calculations. Attached to this report were the calculations that Mann Judd were asked to audit. They take the employees strict award entitlements and compare them with the employees strict entitlements under the agreement. There are some employees who receive an over award payment currently and those employees have been advised that the margin of the over award will be maintained under the agreement.
PN291
Now, Silver Chain also provided to the employees a similar set of calculations based on the same eight pay periods, the same 16 weeks. But as we will see in a moment those calculations differ, those calculations were provided before the auditors conducted their audit and they differ in the respect that is set out at item 2.3. Those calculations, as will be seen, include all payments that the employees receive during the relevant period. So if, for example, an employee went on annual leave and took annual leave that had accrued from an earlier time those calculations factored that in.
PN292
The auditors took the view that because that annual leave entitlement had accrued before the period under consideration it shouldn't be factored in because it wasn't an entitlement accruing under the agreement. Now, I have got a difference of opinion about that. I would have thought that that is still a benefit to employees because it is an entitlement - because the new agreement will apply to all of a person's previous leave entitlements. But, nonetheless, that is the position the auditors took.
PN293
So when we hand up the second set of documents, these are the documents provided to employees, we will see that the total earnings in the second set are greater because they include any leave entitlements whereas this set of documents that have been audited only include, as they say correctly in our opinion:
PN294
...is of the benefit entitlements that accrued to the employees during the review period rather than the actual payments made to the employees during that period of time.
PN295
So it is simply a question of the methodology, if you like, that was used in arriving at the figures. As will be seen, though, the percentages, with one exception that I will come to, do not vary much at all. Now, carrying on in paragraph 2.3 the auditors say:
PN296
This point is relevant to leave entitlements and in particular accrued days off ...(reads)... regardless of when the payments were made to the employees.
PN297
And they then say that:
PN298
Our examination of the calculation included the following ...(reads)... we agreed hours worked of the employees actual timesheets for the review period.
PN299
So they checked that these calculations were based on actual employee timesheets:
PN300
We agreed the calculations of accrued benefit entitlements to the underlying award or proposed agreement and to the association's payroll accurate records and we checked the arithmetical accuracy of the calculations.
PN301
And they basically, then, in item 3, they are satisfied that the calculations are correct. And they say at 3.5:
PN302
We note that based upon the review period employees -
PN303
these are the employees in the nursing homes -
PN304
will receive an increase in benefits ranging from 4.42 per cent to 13.46 per cent with a weighted average increase of 10.04 per cent calculated as follows.
PN305
And those increases are set out in the table. Now, the difference, your Honour, is that those employees who work a considerable number of afternoon shifts will receive less of an increase initially than those employees who work fewer afternoon shifts because the major reduction, if you like, is the removal of the afternoon shift penalty which currently applies if you work after 6 pm, the shift penalty of 15 per cent under the State Award applies to the whole of the shift whereas under the agreement 15 per cent will now only apply to work performed after 6 pm - sorry, work performed after 7 pm.
PN306
So that is why there is a variation in the percentage increase that employees will receive. But the significant point for present purposes is that all employees will receive a very significant increase in the average of 10.04 per cent on certification of the agreement. Now, I should add to that, your Honour, that in addition, as can be seen from the wages clause in the certified agreement, there are further increases during the life of the agreement of 12-1/2 to 13 per cent. So we are now looking at employees getting increases of between - these are the nursing home employees who the union will tell you are the most disadvantaged, these employees receiving increases in the order of 22 to 23 per cent over the life of the agreement.
PN307
Now, in addition to that employees will have access to salary packaging. And we will hand up a document shortly which will show the effect of salary packaging on an employee's after-tax income where an employer is, as in Silver Chain's case, a public, benevolent institution and effectively FBT exempt up to a certain cap. That could add as much as 8 per cent on top of that. So if employees don't want to take advantage of salary packaging they could have increases ranging from, taking the worst case here if it is Rosemary Chetwynd, anywhere from 4-1/2 per cent initially, plus 12-1/2 per cent over the life - well, in her case 13 per cent over the life of the agreement, so that is 17-1/2 per cent, plus she can access salary packaging which would give her another 8 or so per cent.
PN308
If she didn't want to do that, again, it is 17 per cent and in addition there is also back pay provided because one of the undertakings that Silver Chain gave to the employees which is set out in A8 is that subject to certification the first pay rise will be backdated to 16 October 2002. So there are very, very substantial pay increases available to employees covered by this agreement including those employees who are in the nursing homes. And the position is even more dramatic when one looks at those employees in the community area who are, in effect, coming from a lower base.
PN309
If we put to one side the designated award for the moment and look to what they are actually going to receive by way of increase it is even more than the proposals that are here for the nursing assistants. Over the page, your Honour, the last part of the report at paragraph 3.6 the auditors note the following features. They say:
PN310
Under the proposed agreement the association is offering salary packaging of 30 per cent.
PN311
That, of course, hasn't been factored in. And they then say, 3.63, they note:
PN312
Accumulated long service leave and annual leave as at the commencement of the proposed agreement will eventually be paid to employees at the higher hourly rates as proposed under the agreement.
PN313
So that wasn't factored in either. Now, your Honour, the next document that I will hand up is a copy of the document that was provided to the employees, an assessment over the same period. Apologies, your Honour, I am just making sure I hand up the right one and not the same document that I just provided to you. Yes, if I can hand up a copy of the documents that were provided to the 13 nursing home enrolled nurses to indicate to them their comparative benefits.
EXHIBIT #A13 DOCUMENTS PROVIDED TO 13 NURSING HOME ENROLLED NURSES RE THEIR COMPARATIVE BENEFITS
PN314
THE DEPUTY PRESIDENT: There was an appendix to A12 which looked quite similar, Mr Blackburn.
PN315
MR BLACKBURN: Yes, the appendix to A12 was identified as appendix 1 and you will notice actually, your Honour, that - if we just take the first page of Wendy Alvaro, there is an immediate example of the point that I was making previously. You will see that if one puts to the two side by side the appendix to A12, which is the document that we rely on and think is the relevant document for the purpose of the no disadvantage test and then A13, we will see that the earnings in A13 are higher. And similarly for Faye Ave, the second employee, the earnings in A13 are higher under both documents.
PN316
The percentage increase is not much different, 12.63 versus 13.39; 13.46 versus 13.59. But the reason that those differences are there is that, as I was trying to explain previously, under A13, the document provided to employees, the actual payments made to employees who went on leave were included.
PN317
THE DEPUTY PRESIDENT: I see, yes.
PN318
MR BLACKBURN: Under A12 the auditors took the view that because that was leave accrued previously it ought to be excluded and just referred to in a note but not actually calculated which is what they did. And so that is why the payments are less in one than in the other albeit the percentages are much the same. Your Honour, there is one matter which is quite important to which we will draw your attention. And that is that in the documents provided to employees, A13, an error was made in respect of five of the 13 employees and their percentage was overstated by approximately 2 per cent.
PN319
And the error resulted from the fact that no account was taken in the calculation of the difference in annual leave entitlements under the Enrolled Nurses and Nursing Assistants Award compared with the agreement. Under the award employees may be entitled to up to an additional five days leave for working late shifts and those additional days are calculated on the basis of one day's additional annual leave for each 30 shifts worked. So if you work 150 late shifts in a year then you will get five additional days annual leave.
PN320
That entitlement was not included in A13 that was provided to employees and consequently in respect of those five employees, because there were only five that would have generated an entitlement to additional leave, the document was an error and I will deal with the consequences of that in a moment if I may. To illustrate the point, if one goes to Phyllis Crealy and perhaps goes into the actual comparisons and I will try to find the page. Ms Crealy is on page 27 of the comparison in A13. The page number appears in the top right-hand corner.
PN321
If one looks at page 27 and the summary, I think, of Ms Crealy's entitlements appears on page 30. Page 30 is the relevant page. And you will see that the annual leave accrual is dealt with under the current award as being 70.61 hours. Under the proposed award it is said to be 70.61 hours - under the proposed agreement. In fact Ms Crealy should have had a higher annual leave entitlement included under the current award by virtue of the fact that she accrued some additional leave on top of her entitlement to six weeks leave. And that resulted, for Ms Crealy, in the indication of the 13.08 per cent increase.
PN322
Now, that error was not picked up, regrettably, until after the ballot closed. The error has been identified in the document provided to you - so I will come to the effect of A13 in a moment. If we look at the appendix to A12 and take Ms Crealy as an example again and this time it is on page 17 of A12. You can see that her annual leave accrual under the award is now correctly identified as 82.38 hours. The agreement is correctly identified at 70.61 hours. So there is a reduction in the net benefit. The net benefit is not as explained previously in the vicinity of 13 per cent, it is 10.5. In the other document it is identified as 13.08. So the benefit for Ms Crealy is actually 2-1/2 per cent less than that which was suggested to her by A13.
[12.08pm]
PN323
Now, your Honour, that's obviously a very serious matter. We say that the error was, I think would be accepted even by friend as unintentional. We say that the information sheet clearly identifies the entitlements of enrolled nurses to annual leave under the agreement. That is set out at - in exhibit A8 at paragraph four where it says the offer provides six weeks annual leave for all full and part time employees.
PN324
Nonetheless this document misrepresented the position to five of those employees in respect of the period under review. Now what we say about that is that it ought not, if the Act is applied, effect the certification of the agreement because while a valid majority is required in order to make an agreement under section 170LK and while we accept that for there to be a valid majority the Act requires - it indicates that a valid majority must genuinely agree and that obviously implies there is some question about whether a person can genuinely agree if they had been provided incorrect information.
PN325
Now we say that even if you take those five votes out. Let's assume that all of those people voted yes for the agreement although Mr Kelly will tell you that the enrolled nurses in the nursing homes are all bitterly against it. But let's assume that they all voted yes. Even if they had been given the correct figures and they had all voted no it would not have effected the outcome of the ballot. 50 nurses voted in favour of the agreement out of 86 that were counted and there were two additional votes that, your Honour, may wish to learn about if required.
PN326
But if we take these five employees out of the 50 that still leaves 45 and even if those five employees had all voted yes and now decided - and had they been provided with the correct information, all voted no, that would still leave a vote of 45 to 41. So there would still be a valid majority. So we say that, your Honour, can be satisfied that there is a valid majority of nurses who made the agreement even if we take the most conservative view of how these particular, and I think one must do that, of how these particular employees should have their votes treated assuming that they voted, assuming that they all voted yes and assuming that they would all have voted no otherwise.
PN327
We say that the relevant question is whether a valid majority of employees made the agreement. Five employees were provided with information that was incorrect. That still does not deny the fact that a valid majority of employees made the agreement in the ballot. Your Honour, the next document - set of documents that I will provide go to the community enrolled nurses. And the exercise in their case was conducted against the background of the designated award.
PN328
And the process that was undertaken there, your Honour, was that the employer went through the 104 or so community enrolled nurses to identify those who worked any significant number of shifts - late shifts. And four such employees were identified and the same exercise was done in respect of those four employees. Now the HLB Mann Judd has been asked to audit these figures as well but as yet we haven't received their report and when we do, if required, we will pass it on to you although we say it is obviously not necessary.
PN329
It is simply something that Silver Chain is doing to persuade the Commission of its bona fides and the accuracy of the materials. I would hand up a copy, your Honour, of the unaudited comparisons relating to the community enrolled nurses.
EXHIBIT #A14 UNAUDITED COMPARISONS RELATING TO COMMUNITY ENROLLED NURSES
PN330
MR BLACKBURN: Now there are only four employees who worked a significant number of shifts such as to put them, if you like, in a situation where because of their removal of the afternoon shift they might actually suffer a disadvantage, albeit a nominal one, against the designated award. The calculations, again, were conducted over the same 16 week period. Sharon Argent would receive a 1.73 percent increase against the nominal award.
PN331
Elizabeth Fitzpatrick, 9 percent. Maureen O'Hanlon is the person who falls into the negative - negative 4.26 and Clare Smith 6.73. So on the basis of its enquiries and the calculations done there is no other condition in the designated award that could trigger a person suffering a disadvantage. It is simply this question of the shift. The removal of the afternoon shift penalty. So we have been able to isolate these four employees. We have done the exercise and only one of those would suffer a disadvantage.
PN332
Now in relation to that we say several things. Firstly, that though there is a disadvantage in respect of this designated award. The designated award, for the reasons we have given, is probably not a designated award at all. But in any event even if the designation remained in full force we would have asked the Commission, as Mr Bradshaw has done in his statutory declaration, to exercise its power to certify the agreement in the public interest because of the fact, firstly, that - - -
PN333
THE DEPUTY PRESIDENT: Not contrary to the public interest.
PN334
MR BLACKBURN: Exactly, not contrary to the public interest. The onus is on anyone who objects. Yes, thank you, your Honour. Because of the fact, firstly, that the designation was made in error as a result of representative error. Secondly, the employee concerned is not suffering a real disadvantage. It is purely a theoretical disadvantage based on a designation that was made in error. And, thirdly, because of the very significant net benefit that employees who are Silver Chain community nurses will receive under this agreement.
PN335
THE DEPUTY PRESIDENT: Well, before you get to that Mr Blackburn the terms of 170XA refers to disadvantaging employees. What you are saying with respect to this agreement that there is one employee on this element of what you are submitting that is disadvantaged compared to the award that had - has been designated. Does that - how does that fit with 170XA?
PN336
MR BLACKBURN: Your Honour, we would - we wouldn't take that point because in our view it is not something of which I was previously aware. Certainly, your having raised it now, my immediate reaction would be that we wouldn't take it because we would think that the singular ought be construed as meaning the plural and vice versa and if there is not a statement in this statute to that effect then there is probably one in the Acts Interpretation Act. If there is not there then probably the common law presumption anyway so we wouldn't - - -
PN337
THE DEPUTY PRESIDENT: It is a disadvantage to each employee is what you are saying is the - - -
PN338
MR BLACKBURN: Yes. Yes.
PN339
THE DEPUTY PRESIDENT: - - - probable - yes.
PN340
MR BLACKBURN: Yes.
PN341
THE DEPUTY PRESIDENT: Okay. Thank you.
PN342
MR BLACKBURN: Your Honour, if I could hand up a copy of a comparison. Two documents, your Honour. One is a copy of a sample work place agreement which applies to the Silver Chain's community enrolled nurses and the second is a comparison of conditions under that agreement with the proposed - the agreement we are seeking to have certified.
PN343
MR BLACKBURN: Thank you. A15 - I don't propose to go to because it is adequately summarised in A16. And one can see from A16 that the community nurses and those employed in Silver Chain's hostels who, but for the Health Care Superannuation Award, are award free, stand to receive significant benefits under this agreement. To begin with under the casuals there is a right to convert to full time or part time employment.
PN344
Double time and a half penalty for time worked on Christmas Day. Time and a half for hours worked on other public holidays. Part time employees would be guaranteed a minimum number of fortnightly hours under the agreement. That is not an entitlement they presently have. There are restrictions placed on the working of ordinary hours. A 10 hour shift - a maximum of 10 - - -
PN345
THE DEPUTY PRESIDENT: Sorry, I am a little confused, Mr Blackburn. Who is - does this currently apply to anybody or is it - - -
PN346
MR BLACKBURN: Yes, your Honour. A - is it 15?
PN347
THE DEPUTY PRESIDENT: Yes.
PN348
MR BLACKBURN: A15 is the document that regulates the employment of - - -
PN349
THE DEPUTY PRESIDENT: That is what the - - -
PN350
MR BLACKBURN: Community.
PN351
THE DEPUTY PRESIDENT: - - - employees that will be subject to this agreement, should it be certified - is the current instrument - - -
PN352
MR BLACKBURN: Yes.
PN353
THE DEPUTY PRESIDENT: - - - that applies to them.
PN354
MR BLACKBURN: Yes. They are the employees for whom the designation was sought - - -
PN355
THE DEPUTY PRESIDENT: Yes.
PN356
MR BLACKBURN: - - - because they are the employees who are perceived to be award free and with the exception of the Health Care Superannuation Award are.
PN357
THE DEPUTY PRESIDENT: Yes.
PN358
MR BLACKBURN: And the point we make, and this goes to the question of satisfying you that it is not against the public interest to certify the agreement, because - - -
PN359
THE DEPUTY PRESIDENT: Yes.
PN360
MR BLACKBURN: - - - even though one employee may have - - -
PN361
THE DEPUTY PRESIDENT: What you are saying is whereas existing entitlements under WPA is the existing provision the proposed provision is the provision that is contained in the agreement.
PN362
MR BLACKBURN: Yes. Yes. And you can see that there are numerous benefits ranging from those entitlements I have already mentioned to restrictions on hours of work and numbers of hours worked before meal breaks. Overtime - there is no overtime penalties available under their current work place agreement. The standard overtime penalties have been introduced. The night penalties have been increased from 10 to 15 percent, albeit it starts one hour later.
PN363
The Sunday penalty from 50 to 75 percent. The wage increases go from $14.15 and $14.45 to, in the first instance, $14.84 to $15.92 and then a fairly rapid escalation as can be seen during the remainder of the agreement. We have included in the left hand column, purely for information purposes only, the rates and the Nursing Assistants' Award but they are not strictly relevant to this comparison. The annual increases after the certification of the agreement as set out there.
PN364
Over the page the availability of salary sacrificing. Annual leave - there is a significant increase in annual leave from four weeks to six weeks. Now that becomes significant in the case of part time employees because currently if a part time employee is not scheduled to work on a public holiday that person receives no benefit for that public holiday. Under the proposed agreement all part time employees will get six weeks annual leave. So through that mechanism they receive a benefit for each of the public holidays.
PN365
THE DEPUTY PRESIDENT: But they may be required to work on a public holiday.
PN366
MR BLACKBURN: If they are required to work then they are paid additional to that - - -
PN367
THE DEPUTY PRESIDENT: Yes.
PN368
MR BLACKBURN: - - - so that the net - the effect of payment for work on a public holiday is time and a half plus they have their day of annual leave so effectively double time and a half. Additional Christmas Day penalty rates. Choice of funds for superannuation, etcetera. So what we see is a very substantial increase in base rates. The introduction of overtime payments. The increase in the Sunday penalty. The increase in the night shift penalty. Various restrictions on the working of ordinary hours.
PN369
A right for casuals to convert to full or part time employment. The prescription of minimum number of hours for part time employees. Further increases during the life of the agreement totalling 12 and a half to 13 percent. The provision of salary sacrificing. Additional annual leave. Additional payment for work on Christmas Day which will be back dated to Christmas just gone, if the agreement is certified. Easier access to long service leave. And choice of funds.
PN370
A range of very significant benefits to employees in the community compared with their existing conditions. On that basis we say that it is entirely in the public interest and certainly not against it to certify the agreement even though in respect of one employee there has been found to be a nominal disadvantage against an award that was wrongly designated in the first instance. So we say that you ought not be deterred from certifying the agreement simply because of that.
PN371
Your Honour, to - I previously indicated the extent of the increases. Now we are seeing the extent of the increases available to the enrolled nurses in the nursing homes who are likely to be the source of most debate. And we have indicated that as the auditor showed there was an average increase of 10 percent although for some employees it was as low as 4.6 - or for one employee it was as low as 4.6. An average increase of 10 percent in the first instance.
PN372
Further increases during the life of the agreement to 12 and a half to 13 percent. As I have indicated the payments will be back dated to 16 October. Can I hand up a document which sets out the calculation for the amount of back pay that two of those employees identified in exhibit A12 will receive?
PN373
MR BLACKBURN: Well, we have taken here the calculations for Rosemary Chetwynd and Pauline Charsley. They are employees who under the auditor's report are shown as having the least amount of an increase. 4.42 percent to 5.85 percent respectively. So as can be seen they will both on certification of the agreement receive an amount of back pay in excess of $1,000. And then of course in addition to that, as we have indicated, there is the access to salary packaging.
PN374
Now the salary packaging is as, your Honour would be aware, not an insignificant benefit and when - - -
PN375
THE DEPUTY PRESIDENT: I don't know about that, Mr Blackburn. There is no salary packaging that applies to members of the Commission.
PN376
MR BLACKBURN: I am dismayed to hear that, your Honour. But doubtless there are other compensations. Perhaps if I could hand up a copy of Silver Chain's salary sacrificing documentation. This is in force at the moment. It - salary sacrificing is available to Silver Chain's registered nurses under the terms of their certified agreement and this sets out basically the terms on which Silver Chain employees can salary sacrifice and what in fact they can sacrifice and also some material from McMillan Shakespeare which further explains the process. McMillan Shakespeare administers Silver Chain's salary sacrificing for it.
EXHIBIT #A18 SALARY SACRIFICING ARRANGEMENTS - PACKAGE OF DOCUMENTS
PN377
MR BLACKBURN: Your Honour, the next document I hand up is a comparison calculated by Silver Chain's chief finance officer of the benefit accruing to a sample employee.
EXHIBIT #A19 COMPARISON OF BENEFIT ACCRUING TO A SAMPLE EMPLOYEE
PN378
MR BLACKBURN: This calculation is based on a part time enrolled nurse, increment four. That is enrolled nurses who have worked for Silver Chain for three or more years. Working 25 hours a week and who packages 30 percent of her salary. And it shows that overall after tax the employee is better off as a result of packaging by 8 percent. So we say that there simply is no question of, in our view, of this agreement failing the no disadvantage test especially in relation to those employees in the nursing homes who are the subject of - who are currently covered by the State Nursing Homes Award.
PN379
THE DEPUTY PRESIDENT: Mr Blackburn, why - I mean, salary packaging is really a tax issue, isn't it? Why should that be something that is considered with respect to a no disadvantage test?
PN380
MR BLACKBURN: Because, your Honour, it is something that is not available under the agreement - under the current award. It is only available - awards, as, your Honour, would be aware, require the payment of whatever wages are set out there and required payment in cash. They don't allow an employer to, for example, provide half of the stated amount and the other in some other goods. The award - - -
PN381
THE DEPUTY PRESIDENT: So you are saying without an agreement that is certified or made in some form - - -
PN382
MR BLACKBURN: Yes.
PN383
THE DEPUTY PRESIDENT: - - - under the appropriate legislation, that there is no capacity for the employer to - - -
PN384
MR BLACKBURN: That is right.
PN385
THE DEPUTY PRESIDENT: - - - to apply this type of provision.
PN386
MR BLACKBURN: That is right. And the same under the Minimum Conditions of Employment Act requires the payment of employees wages in cash and not in kind. So it clearly is a benefit that is available, albeit it is not a benefit that all employees may wish to avail themselves of. So it is not something that we can categorically throw into the mix in every single case.
PN387
THE DEPUTY PRESIDENT: But you are saying that is a - the reason why that cannot be applied is because of the award coverage?
PN388
MR BLACKBURN: In respect of those nurses in the Enrolled Nurses and Nursing Assistants' Award, yes.
PN389
THE DEPUTY PRESIDENT: But these employees - there is only one award that you say covers them - - -
PN390
MR BLACKBURN: That is right.
PN391
THE DEPUTY PRESIDENT: - - - so there would be no preclusion for - from the employer - - -
PN392
MR BLACKBURN: Well, in respect - - -
PN393
THE DEPUTY PRESIDENT: - - - applying this would there?
PN394
MR BLACKBURN: In respect of the non-award employees - the community nurses - - -
PN395
THE DEPUTY PRESIDENT: Yes.
PN396
MR BLACKBURN: - - - there is still the Minimum Conditions of Employment Act.
PN397
THE DEPUTY PRESIDENT: And that precludes - - -
PN398
MR BLACKBURN: I think it does. I will come back to your Honour on that but I think it does.
PN399
THE DEPUTY PRESIDENT: I am just - what I am grappling with is why should this - - -
PN400
MR BLACKBURN: Well, it - - -
PN401
THE DEPUTY PRESIDENT: - - - why should this be taken into consideration.
PN402
MR BLACKBURN: Yes. Well, firstly, clearly as far as those nurses - enrolled nurses in nursing homes are concerned there is an award which prescribes that employees must be paid - - -
PN403
THE DEPUTY PRESIDENT: Yes. For those.
PN404
MR BLACKBURN: - - - a certain amount. Now as far as the other enrolled nurses are concerned I believe that the Minimum Condition of Employment Act requires an employee to be paid their wages in cash and that is a requirement that therefore applies to those employees and perhaps later on today if we are continuing after lunch I will provide, your Honour, with a copy of the relevant provision.
PN405
THE DEPUTY PRESIDENT: How many, roughly, are in nursing homes and how many are not?
PN406
MR BLACKBURN: 13, your Honour. The vast majority are in the - - -
PN407
THE DEPUTY PRESIDENT: Yes.
PN408
MR BLACKBURN: - - - so called award free area with the exception of the Superannuation Award.
PN409
THE DEPUTY PRESIDENT: Yes.
PN410
MR BLACKBURN: So 119 are either in the community or in hostels.
PN411
THE DEPUTY PRESIDENT: So there are 13 that are bound by awards other than the Superannuation Award?
PN412
MR BLACKBURN: Yes. Yes.
PN413
THE DEPUTY PRESIDENT: Yes.
PN414
MR BLACKBURN: Your Honour, I might just have a moment but I think that may be all we wish to put to you at the moment
PN415
THE DEPUTY PRESIDENT: Okay. Thanks. Could we just - there are two other issues, Mr Blackburn, but I might pose these - certainly the second question to you and then adjourn. But with respect to the certification you corresponded my chambers on 24 January and copies Mr Tyrrell from the ALHMWU in that correspondence. And part of that states that you intend to proceed with the application - or the union intends to proceed with its application for an interim award on Friday 7 February.
PN416
Now taking you back to 170X and the no disadvantage test and when it is applied. It is applied when it is certified - when the agreement is certified, if it is certified. In terms of these proceedings is that - does that mean that if this agreement does not get certified now but at some later stage and in the intervening period an award issues then the - that is the award that must be considered?
PN417
MR BLACKBURN: Yes, your Honour.
PN418
THE DEPUTY PRESIDENT: Is that what you are getting at in that letter?
PN419
MR BLACKBURN: Yes. That is our provisional view. In fact I don't know there is a great deal of doubt about that. This matter has been the subject of a section 128 application to a Full Bench of this Commission and that section 128 application seeking to restrain the State Commission from proceeding to hear the award matter was adjourned last week because you were to hear the certification today and the award matter wasn't scheduled until the 7th.
PN420
It was adjourned on that basis but with leave to Silver Chain to apply to have it brought on again at short notice so that if, your Honour, is not able to complete the certification today we may very well be in the position where we are asking the Full Bench to reconvene at very short notice to stay the proceedings in the State Commission. I should add also that late last Friday in a hearing before Commissioner Scott we asked Commissioner Scott, again, to adjourn the hearing of the State matter until such time as the certification process had been completed.
PN421
We said to Commissioner Scott - well, we put various submissions to Commissioner Scott but the result was that she refused our request for adjournment. So as far as the State Commission is concerned it intends to proceed on the 7th unless restrained by the Federal Commission. But, your Honour, there was one other thing that I will pass on to you.
PN422
I haven't received the transcript of the section 128 application hearing yet but when we were putting to the Full Bench that one of the reasons justifying the 128 order was that the making of a State Award before this application is able to be certified would interfere with the certification, his Honour the President said wouldn't it still be open to you in the event that the State Award was made in the terms sought by the union which is in effect a mirror of the agreement plus one delegates condition and without the no extra claim clause.
PN423
His Honour, said, well, if a State Award was made before certification in those terms wouldn't it be open to Deputy President McCarthy to certify the agreement in any event as - on the basis it was not against the public interest to do so. And I said, well, yes it would be but we would then be relying on his discretion. And then, interestingly, his Honour the President, followed up with, well, yes but if President McCarthy didn't exercise his discretion in your favour wouldn't it be open to you to appeal him.
PN424
And I think my answer was something along the lines of well, yes but all this can be resolved now by the making of a section 128 order. Frankly we have enough litigation on our hands we don't really want to be going down that path. I just mentioned that for what it worth and the transcript will be published shortly and you will be able to read, his Honour's remarks.
PN425
THE DEPUTY PRESIDENT: Well, it is theoretical in one sense but it could become real Mr Blackburn. I think I heard you say that the only difference between the proposed award and the agreement that is proposing to be certified is one clause. Did I hear you accurately?
PN426
MR BLACKBURN: Two clauses, your Honour. The removal of the non extra claims - - -
PN427
THE DEPUTY PRESIDENT: Yes.
PN428
MR BLACKBURN: - - - and the addition of the delegates clause and the wages. The only wages that are included are the first increment but of course the test if does it disadvantage the person on the day of the hearing, in effect. So it is those - that first slab of wages that are relevant. Apart from that it has the addition - - -
PN429
THE DEPUTY PRESIDENT: So it is a no extra claims clause that - where there is a difference and a, sorry, a delegates clause.
PN430
MR BLACKBURN: The addition of a delegates provision entitling union delegates to a certain amount of paid trade union training leave. It seems to us that almost by definition this agreement would then fail the no disadvantage test if a replica award was made but it had one additional entitlement we wouldn't be able to persuade you that there was a net no disadvantage because our agreement doesn't have that one additional entitlement. And it is in that circumstance that I think his Honour made the comment that he did.
PN431
THE DEPUTY PRESIDENT: Yes. Thank you. Well, the other issue is to - comes back to the question of the intervention of Mr Kelly either as a representative or as an organisation. I will adjourn and ask you to re-address me on that issue once you have had the opportunity to access Senior Deputy President Polites decision and any other relevant decisions. But I will put this to you. Mr Kelly I think said that he had two different forms of request.
PN432
One is a request to represent either - or a number of persons and, two, a request for the organisation to be bound by the agreement. Now I have granted intervention for Mr Kelly to address me or to, for the purposes of 43(2)(b) and I am yet to determine any bounds associated with that intervention, but presumably he could seek intervention under 43(2)(a) as well representing persons as mentioned in 170LK(4). In a sense having two hats and if he were to do that he may well be able to get intervention under 43(2)(a).
PN433
Now the reason I raise that - does it become a pedantic issue, I suppose, to confine Mr Kelly through an intervention under 43(2)(b) when apparently he can seek one under 43(2)(a) anyway?
PN434
MR BLACKBURN: Well, your Honour, we wouldn't oppose an intervention under 43(2)(a) but Mr Kelly was quite clear this morning. He - despite, your Honour's invitation, kept asserting that his application to intervene was only under 43(2)(b).
PN435
THE DEPUTY PRESIDENT: Yes.
PN436
MR BLACKBURN: And on that basis we have a duty to inform the Commission of the authorities that are against it.
PN437
THE DEPUTY PRESIDENT: Yes.
PN438
MR BLACKBURN: If he wants to apply under 43(2)(a) we would not oppose the application as it seems to us the conditions are made out.
PN439
THE DEPUTY PRESIDENT: All I will ask is if, Mr Kelly you can consider that as well, prior to reconvening after lunch and see if we can facilitate, which I think is the obligation I have to the certification of an agreement or at least the consideration of the certification of an agreement. On that basis I will adjourn until 2 pm. Thank you.
LUNCHEON ADJOURNMENT [12.40pm]
RESUMED [2.02pm]
PN440
THE DEPUTY PRESIDENT: Mr Blackburn.
PN441
MR BLACKBURN: Yes, your Honour, just before the - before Mr Kelly and I left we had a discussion and I understand that there is now an application for intervention on the first part of 43(2) which we wouldn't object to.
PN442
THE DEPUTY PRESIDENT: Is that right, Mr Kelly?
PN443
MR KELLY: Yes, Deputy President. Notwithstanding the submission I made earlier and the fact we maintain our view that the initial application we made would have been and is sufficient for us to make further submissions in order to expedite this matter, I do have an authority or a request from an - - -
PN444
THE DEPUTY PRESIDENT: Okay.
PN445
MR KELLY: - - - employee which would permit us to be permitted intervention under that other - - -
PN446
THE DEPUTY PRESIDENT: Yes, well thank you for that facilitation, Mr Kelly. I will mark that R2. Have I marked one R1 in that previous - - -
PN447
MR KELLY: Deputy President, I am not sure whether you have marked the first document.
PN448
THE DEPUTY PRESIDENT: I didn't actually mark it as an exhibit, did I?
PN449
MR KELLY: Yes, I think - - -
PN450
THE DEPUTY PRESIDENT: I think you - I will mark that previous one R1 and this will be R2 but I would note that in marking those as exhibits the identity of the signatories to it will be kept confidential.
PN451
MR KELLY: Thank you, Deputy President.
PN452
THE DEPUTY PRESIDENT: On that basis, Mr Kelly, intervention is granted pursuant to 43(2)(a) as well as the previous intervention granted 43(2)(b).
PN453
MR KELLY: Thank you, Deputy President.
PN454
THE DEPUTY PRESIDENT: Mr Blackburn, you were - - -
PN455
MR BLACKBURN: Yes, just for completeness, your Honour, I undertook to provide you with the authority in light of the circumstances I didn't carry and obtain a copy but the case is that the decision of Deputy President Polites in Access Security Solutions Pty Ltd, print Q7309 given on 7 October '98 but in the circumstances now, there is no need to - - -
PN456
THE DEPUTY PRESIDENT: Yes, thank you, thank you. Well you have completed your submissions, have you Mr Kelly?
PN457
MR KELLY: Yes, thank you, Deputy President. Deputy President, we have serious concerns as to whether this agreement is capable of being registered and we do that on three bases. Firstly, we question whether or not a valid majority of employees have approved the agreement, we don't believe that the no-disadvantage test has been met and, finally, we don't believe that if a - in a raw sense the valid majority of employees voted in favour of the agreement we don't believe that there was nevertheless genuine agreement, so on those three matters we believe this agreement is not capable of being certified.
PN458
Now we did - and I will go into a little bit more detail on each of those issues but we did by letter to Mr Blackburn and a copy, I believe, we to your associate, seek discovery of a number of documents that we say are necessary for us to fully deal with those three issues. The letter was dated 3 February.
PN459
THE DEPUTY PRESIDENT: Yes, I have a copy in front of me.
PN460
MR KELLY: Yes. Now we would seek that the Commission make an order for discovery of the documents as outlined. I have spoken to Mr Blackburn earlier as to whether or not the company would willingly provide those documents, sir, and he has indicated they will not therefore it is necessary for the Commission to make a determination as to whether these documents are appropriate. Before I go into the documents I might just give a bare bones, if you like, explanation of why we believe this agreement is not capable of proper certification under those three areas.
PN461
THE DEPUTY PRESIDENT: Well if I could come back a step with your application for discovery. I gather what you are seeking is a direction or an order - - -
PN462
MR KELLY: Yes.
PN463
THE DEPUTY PRESIDENT: - - - for those documents to be provided, is that - - -
PN464
MR KELLY: That is correct, Deputy President.
PN465
THE DEPUTY PRESIDENT: Do you want to elaborate on what power I have got to do that and I will need to hear from Mr Blackburn on that issue as well?
PN466
MR KELLY: Deputy President, you are entitled to - or you are required to enquire into this matter to determine whether or not the agreement is capable of registration.
PN467
THE DEPUTY PRESIDENT: Yes.
PN468
MR KELLY: Now the Commission does have wide powers in respect of - as outlined in section 111 of the Act, if not - and those powers go to giving such directions at (t):
PN469
...and doing all such things as may be necessary to expedite a speedy and just hearing of determination of a dispute.
PN470
So we say the matter can be dealt with under that power. If not specifically under that power, Deputy President, under the provisions relating to the registration of agreements, if the Commission is to enquire into and determine, for example, whether there is a valid majority, whether or not a genuine consent has been made the Commission must surely have the ability to request that certain matters be provided or documents be provided to it provided they are aware that they exist in order to assist the Commission in making that determination.
PN471
THE DEPUTY PRESIDENT: Yes, that is one thing but it is another then to require that documentation to be provided to others.
PN472
MR KELLY: Well as an intervener in these proceedings - - -
PN473
THE DEPUTY PRESIDENT: Yes.
PN474
MR KELLY: - - - it would seem to us that it would be very unusual for the Commission to make a decision to seek to provide some - for the Commission to determine that it requires some information in order to make its determination but then to deprive interveners who have an interest and who have, you know, statutory ability to represent a worker who is going to be subject to the agreement to have that information denied to them - sorry, to the intervener. Now some of - if the Deputy President is concerned that some of the information requested goes to, for example, one of the issues that we seek to explore is, if you like, the electoral roll for the vote.
PN475
Now I will go into more fully why we believe that there is certainly some question as to why - sorry, why that is necessary but simply provided to the intervener the names of employees who were included in the vote and who were excluded in the vote, in our view, is not a controversial matter. The employer has already provided to us today in a number of the exhibits that have been provided the names of employees who may or may not be members of the union but they have picked them as - provided us with their details as part of their comparisons so we don't seek, for example, the names and addresses - sorry, the addresses or phone numbers or the like, we simply seek to know who was included on the roll and who was excluded on the roll.
PN476
And as for the other matters - the other documents that we seek, documents in the employer's control that go to the negotiations with LHMU up - from 1 June 2002 up until the present. We don't believe there is any reason why the Commission would not have those documents produced. We are of the - - -
PN477
THE DEPUTY PRESIDENT: How are they relevant though? I mean, all that is relevant to these proceedings is the agreement complying with the requirements of the Act and save any coercion or issues of that nature, how the agreement was arrived at, is that really for me to be required to have any information at all on?
PN478
MR KELLY: Well Deputy President, if I can - the reason we say that is relevant is we say it goes to the issue of whether people would - there was a genuine agreement - - -
PN479
THE DEPUTY PRESIDENT: I see.
PN480
MR KELLY: - - - on behalf of the employees. Now I don't wish to go too far into the evidence that I - we intend to call, but one of the matters that we will be raising is in the course of the negotiations, if you like for that agreement with the union, some matters were agreed between the employer and the union on a without prejudice basis. Now the employer, in the documentation that they sent to employees sought to - well in fact did say that there was general agreement between the union and the employer on wages and conditions and the only matter that was outstanding was whether or not the union would agree to a clause in the certified agreement that permitted AWAs. Now it was - it was exhibit A7 from the employer, they sent a letter out on - dated 20 December 2002 - - -
PN481
THE DEPUTY PRESIDENT: Look, perhaps just for - perhaps before you go to that, Mr Kelly, I will want to hear from Mr Blackburn about your application for discovery in any event. I am wondering whether it would be more expeditious for you to - if it is possible for you to, in the absence of an order for discovery to make your submissions in any event, or does the nature of your submissions mean that you need that documentation?
PN482
MR KELLY: Well, Deputy President, it is - well the potential is there that there would be material that we weren't aware of that might change our submissions and necessitate us to either accept some things we assert were wrong or to go back and rely on documentation that was subsequently provided.
PN483
THE DEPUTY PRESIDENT: Yes.
PN484
MR KELLY: So in our view it would be not a satisfactory way to proceed for us to be required to make our submissions, call our evidence in the absence of a - the order for discovery. Could I - I don't want to pre-empt you speaking to Mr Blackburn, but if one of the matters that no doubt Mr Blackburn will complain about is, this is just a delay in tactic in order to allow us tot conduct the proceedings in a State Commission and, you know, this is just an attempt to get this off - to delay the certification.
PN485
If the Deputy President was of a mind to make an order for discovery which necessitates an adjournment of this matter we would undertake to seek an adjournment of the matters before Commissioner Scott in a State Commission and undertake not to have that matter re-listed for hearing until you had again had the opportunity to reconvene following any adjournment that you may or may not seek.
PN486
THE DEPUTY PRESIDENT: Yes. See the difficulty I have is on my tentative view of interventions generally is that the provisions of 43(2)(a) you are representing an individual and presumably that individual has been privy to any of the - or a lot of the documentation, probably not all of the documentation in order to be able to instruct you, the intervention about the sort of issues that you want to raise regarding genuineness and valid majorities but 43(2)(b) where you have intervention as an organisation for one purpose only, the difficulty I have is how 43(2)(a) can envelop a capacity for an organisation under 43(2)(b) discovery documents relating to the making of the agreement. So that is the thing that is exercising my mind, Mr Kelly.
PN487
MR KELLY: Well as far as the individual who has authorised us to represent them, yes, that employee has been provided with documentation from the employer and we have reason to believe that we have everything that has been provided to that employee, but as you have heard in Mr Blackburn's submissions, there are a number of groups of employees involved in these proceedings and separate documentation has been provided to separate groups, not everything has been provided to everybody. So we are simply, if you like, we are just trying to make sure that we have got everything that was put out to employees.
PN488
Now if Mr Blackburn - in respect of number 2, all documents in the respondent's control either relating or referring to the information provided by the employer to employees regarding the content of the proposed Silver Chain Agreement they, for example, would say, well yes, everything that would fall within that has already been provided either through the exhibits or the like, well we don't have an issue with that, but our member, we don't believe, received everything that the employer put out. Similarly, in respect of 4, obviously an individual member - an individual employee who is going to be subject to the agreement is not - has not been provided by Silver Chain with information that goes to the roll, for example.
PN489
So the individual we represent has an interest in this matter because she will be subject to the agreement and is entitled to make submissions and, you know, you can require us to shoot with what we have got, if you like, but we think that will only provide more questions necessary than answers. The evidence before you in respect of the ballot indicates that the employer acknowledges that there was some mistakes, for example, in the roll. Now the ballot result was, we would say quite slim - - -
PN490
THE DEPUTY PRESIDENT: See, perhaps - I don't have any difficulty with you raising on behalf of the individual you are representing questions that I must be satisfied with, the next step of then saying, well the organisation is entitled to documentation in order for the organisation to be satisfied, if that is what you are saying, is a step that I have the difficulty with. I don't have the difficulty with you identifying well these are things the - if this is your wish, these are things the Commission needs to have in front of it in order to properly consider the matter of certification but the step of then that information being provided is where I have the concern, I suppose, as to whether I can actually do that.
PN491
MR KELLY: Sure. Well Deputy President, we - the LHMU is in these proceedings with two hats, as you rightly referred to before lunch. Now that is a creation of a statute.
PN492
THE DEPUTY PRESIDENT: Yes.
PN493
MR KELLY: We specifically seek discovery on behalf of the individual who we represent. Now it is not possible for us in a corporate sense, I won't attempt to tell you that we will only view those documents in one capacity not the other - - -
PN494
THE DEPUTY PRESIDENT: Yes, difficult to wear two hats.
PN495
MR KELLY: It is, but that is a creation of the statute.
PN496
THE DEPUTY PRESIDENT: Well perhaps at this point, Mr Kelly, and it is purely on the issue of discovery, do you want to elaborate on that further, because I want to hear from Mr Blackburn in relation to any powers that I have there and it may be that he may be able to, partly at least, accommodate some of the requests anyway, but voluntarily, who knows?
PN497
MR KELLY: Well Deputy President, other than provided you with a bit more detail as to why we think there is a real question about a valid majority or to go into a bit more detail about why we think there is not genuine agreement - - -
PN498
THE DEPUTY PRESIDENT: Well, what I will expect you to raise, if there is no order for discovery, I will expect you to raise those issues if you want. If you have any questions about those issues in order for me to be satisfied or not satisfied but to determine whether the agreement should be certified but at this stage I would prefer to hear from Mr Blackburn as to any jurisdiction I am limited by or not limited by with respect to an order of the nature you are seeking.
PN499
MR KELLY: Sure. Deputy President, there may be one other issue appropriate to raise with you at this time, obviously we have been privy to the exhibits that Mr Blackburn provided this morning.
PN500
THE DEPUTY PRESIDENT: Yes.
PN501
MR KELLY: Now especially the comparisons and the documentation that was provided in respect of whether or not the no-disadvantage test has been met is quite extensive now - and they would have been the documents that we would have - that we sought but hadn't been provided with them, that was a decision for Silver Chain but we would certainly seek an adjournment to be able to properly consider those matters. Now again in respect of the State Commission proceedings, we don't attempt to do that, we are prepared to give an undertaking so that is not seen or interpreted as a way of simply derailing these proceedings, and secondly, as far as any - as far as we can see there is no urgency to have this matter registered - this agreement registered today or certified today.
PN502
The employer has given an agreement that should the agreement be certified there will be a back payment made to - the date I think is 16 October, that could be wrong, so there is no prejudice to the employees who will be subject to the agreement, but as you - I think you would agree, those comparisons have been provided especially the ones provided by Mann Judd are quite extensive and we would seek an opportunity to give those exhibits some consideration before we make our submissions in respect to the no-disadvantage test.
PN503
THE DEPUTY PRESIDENT: Yes. I will consider that request.
PN504
MR KELLY: Thank you.
PN505
THE DEPUTY PRESIDENT: Mr Blackburn.
PN506
MR BLACKBURN: Thank you, your Honour. Your Honour, just to clarify one aspect first and that was the - Mr Kelly indicated that he had sought documents from us previously but we had not provided them to him, well there is been no written request made to Silver Chain in relation - requesting any documents at all. Mr Kelly has previously said to me that we have been telling them nothing and I have said to him, well, we have answered everything that you have asked, and even when the union met with us pursuant to I think 170LK(4) on 10 January there was no request made of us for information in a written or any other form to be provided to the union on that day.
PN507
Now the - yes, and Mr Kelly asked me, am I saying we didn't get the letter from discovery? Well, your Honour, I was rung by Mr Bradshaw last night after 5 o'clock to tell me that Silver Chain had received this letter for discovery and I didn't see it until late last night, so yes, the request was made. It was made - faxed to my office at - by the look of this, 4.50 pm last night and that is the request. Now we say that the lateness of the request is a factor that you are able to consider but there are a range of other factors as well that go to the treatment of this particular request for discovery.
PN508
The first thing is the question of power. Mr Kelly has referred you to section 111 of the Act and the first thing we note about that at 111(1) is that they are powers that the Commission can exercise in relation to an industrial dispute, that is what the section says: Subject to this Act, the Commission may, in relation to an industrial dispute, exercise all of those powers. Now the first thing that strikes one there of course is that we are not here involved in an industrial dispute. This is a certification proceeding and the powers are not sought to be exercised in relation to a dispute. No dispute has been notified to you. Now the - - -
PN509
THE DEPUTY PRESIDENT: What about subsection (2)?
PN510
MR BLACKBURN: Yes, thank you, Commissioner. I overlooked that so I will withdraw that - I will withdraw that submission. In any event, we say we wouldn't have gone so far in any event as to suggest that you had now powers to - - -
PN511
THE DEPUTY PRESIDENT: What it does say, if I could just elaborate on that maybe, Mr - or ask you to - subsection (2):
PN512
...unless the context otherwise requires -
PN513
now is there any issue in the context of that?
PN514
MR BLACKBURN: No, no, Commissioner, no, your Honour, there is not, in our view.
PN515
THE DEPUTY PRESIDENT: Thank you.
PN516
MR BLACKBURN: But in any event we wouldn't have gone so far as to say that you didn't have the power because we thought it would have been a power that in some circumstances would be critical as to your deliberations, we say some circumstances but not these. The primary objection that we have to the request for discovery is, firstly, that many of the documents are not relevant, many of them will be covered by legal professional privilege and the whole exercise, and this has been supported by Mr Kelly's submissions to you, is a fishing expedition. The union doesn't know whether - what these documents will reveal, it doesn't know whether there are further grounds within these documents to attack the certification process. It has admitted that and therefore it is purely a fishing expedition.
PN517
In order for it to be anything other than that Mr Kelly would need to provide some evidence, he would need to at least raise a presumption that certain things haven't been done and if you raised a presumption in respect of particular matters it would then fall to Silver Chain to rebut that presumption by the provision of appropriate evidence, and if Silver Chain didn't, the inference in Jones v Dunkel would lie against Silver Chain, and that is a process that we say should be followed in this case.
PN518
If the union has some evidence, let it bring the evidence and rather than having a broad - a wide ranging request for documents as is sought here, which would be particularly onerous, which encompasses documents that are not relevant, which encompasses documents many of which will be within the compass of legal privilege, rather than do that on the off chance that there might be something there, let the union put its case, raise a presumption based on properly put evidence and then if, in your mind, Silver Chain does not satisfactorily respond to those matters, perhaps by the provision of further evidence or perhaps because of what is already before you, then the inference in Jones v Dunkel would apply. Some of the documents that are sought there, your Honour, in the first category are:
PN519
All documents relating or referring to negotiations up until 1 June 2002.
PN520
We struggle to see the relevance of any documents that would fall within that category for the questions that you have before you today, but relating or referring to negotiations with the union. Again, there is no relevance to the discussions - to the deliberations that you have before you today. The second paragraph:
PN521
All documents relating to or referring to the information provided by the employer to employees regarding the content of the Silver Chain Enrolled Nurses Agreement.
PN522
Your Honour, we have provided all of the information, as far as we are aware, that was provided on a basis to all employees. Some additional employees would have been provided with information as a result of their accessing the telephone line, the special agreement line and of course, other employees would also have been told various things at the meetings they attended. So as far as we are aware, those are the only sorts of information that would not have been included in the material already presented to you. The third category of documents:
PN523
All documents in Silver Chain's control relating to or referring to steps taken to ensure that the requirements of the Act have been met.
PN524
Well that would encompass broadly every single document that Silver Chain has or certainly - not every single one, but certainly a great many of them. We say that Silver Chain has already put enough before you to satisfy you that the requirements of section 170LE and 170LK have been met. Let the union challenge what we put. Let the union raise a presumption to the contrary and if need be, we will meet it with additional evidence but to cast a wide ranging obligation on the employer to, in effect - which in effect amounts to discovery at this late stage and without the union raising any suggestion of impropriety is simply too much, in our view.
PN525
It should narrow its focus, it should tell us what it is concerned about and if need be, then Silver Chain can provide the evidence and if it can't then the inference is the same, Jones v Dunkel as against Silver Chain. And finally, your Honour:
PN526
All documents in the respondent's control relating to or referring to the ballot including but not limited to the lists of employees issued with ballot papers.
PN527
Now we have provided your Honour and the union with documents setting out the process that was followed by Silver Chain in conducting the ballot and then in having Mann Judd conduct a ballot. We have provided the results of the ballot. Mr Tyrrell, who is with us today, was present at the ballot. If Mr Tyrrell wants to stand up and say there was anything wrong in the conduct of the ballot then he is free to do so and we can cross-examine on that, but I don't think he will.
PN528
MR TYRRELL: I think he will.
PN529
MR BLACKBURN: Okay, well we will hear him on that, we will hear - - -
PN530
THE DEPUTY PRESIDENT: Can we - if people want to make submissions, they will be given every opportunity to, but if you want to have interchanges at the Bar table, well I will exclude myself and you can have those interchanges in my absence.
PN531
MR BLACKBURN: And then the final set of documents sought, your Honour, are lists of the employees issued with ballot papers. Well again, if the union has any evidence of an employee having been improperly excluded from the ballot then we would be happy to provide to your Honour for your Honour's eyes only, a list of the final list as has been done in some other cases and your Honour can check to see whether that employee was properly included on the final list. We would oppose any request by the union for the list to be provided to it, holus-bolus, without any evidence to suggest that there was some error in the formulation of that list.
PN532
The union says, well we don't the addresses, we only want the names but the fact is, your Honour, once the names are provided the addresses can easily be obtained. All of these people are registered enrolled nurses, their addresses could be obtained from the Nurses Board, they could be obtained from the electoral roll. It is an easy step to go from one to the other. The request that the union is making is not one that it could obtain under the right of entry and inspection provisions under the Act and in the absence of some evidence indicating some fault on the part of the employer in complying those lists, we say there is no basis to require the production of those documents.
PN533
Mr Kelly has said, well look, it would be an extraordinary step for the Commission to decide that it requires information and then to deprive the interveners of the benefit of that information. I can only point to exhibits R1 and R2. The Commission does it all the time where it feels the need for confidentiality. It will withhold a particular exhibit from one side or the other and R1 and R2 which are confidential to the union, and we haven't seen and we can't - we don't know whether those particular employees or that employee has withdrawn the request, we don't know how the circumstances in which the employer was asked to give that request, we have no opportunity to cross-examine on any of those issues.
PN534
So we say if Mr Kelly's concern is that a particular employee ought to have been given a ballot paper but wasn't given a ballot paper, then they can bring that evidence and we, in that circumstance, would be happy to provide your Honour with a copy of the final list and your Honour could review the matter, but we certainly do object to the provision of these documents in the form sought. Additionally your Honour, as I have indicated, many of the documents will simply not be relevant to the determination that you Honour has to make today and many of them would also be the subject of legal privilege. Your Honour, in request - - -
PN535
THE DEPUTY PRESIDENT: Are there any documents in there that are requested or the union has requested specifically that Silver Chain is prepared to provide to the union?
PN536
MR BLACKBURN: Well, your Honour, they are really - apart from the list of ballot papers and information provided to employees, no other documents are requested specifically. It is just a wide ranging net. I have dealt with the issue of ballot papers. Silver Chain - the lists, rather - Silver Chain would be happy to provide that list to your Honour if there was a basis for doing that. In respect of the information provided by Silver Chain to individual employees, it is likely, in fact I am aware that there are some e-mails in existence which resulted from people accessing the special telephone line and subject to the deletion of the name of the individual concerned, we would be happy to provide those to the union.
PN537
Now the - Mr Kelly said, look, but they have already - they have already told us the names of a whole range of employees. The names of the employees that we have provided so far are the 13 nursing home employees, and the union knows who those 13 people are, and four community enrolled nurses and that was the minimum number of people that we felt we had to provide in order to satisfy you that the no-disadvantage test had been met, so we certainly object to providing full employee lists but coming back to your question, your Honour, we would be prepared to provide any e-mails that have been provided to employees as a result of requests made to the - - -
PN538
THE DEPUTY PRESIDENT: Yes. I don't think that will be enough to satisfy Mr Kelly. Mr Kelly, do you have anything further you wish to - - -
PN539
MR KELLY: Yes, there are a number of matters that I wish to raise. Firstly, the accusation has been made that this is a fishing expedition. Now I did outline the areas where we believe that there are serious questions relating to the registration of this agreement. I have an affidavit from Mr Glenn Tyrrell. I am happy to provide that affidavit at this point in time.
PN540
THE DEPUTY PRESIDENT: Well before I accept that, the issue I want you to particularly address is two. One, any issues associated with or reasons why there should be an adjournment, and secondly, is the merit, I suppose, if I can cast it - term it that, of requiring the documents that you are requesting to be provided, so does the affidavit go to - - -
PN541
MR KELLY: Yes, yes, Deputy President. It outlines, for example, reasons why evidence that goes to irregularities in the ballot process which would make it desirable, in our submission, for - - -
PN542
THE DEPUTY PRESIDENT: Well, Mr Tyrrell - will you be calling him to provide evidence?
PN543
MR KELLY: We are - it is our intention to call him to - well he is available to be cross-examined on his affidavit if Mr Blackburn wishes, but we would certainly be intending to provide his affidavit as evidence and that outlines valid irregularities that the union is aware of.
PN544
THE DEPUTY PRESIDENT: Yes.
PN545
MR KELLY: So it would go to, one, the merit of whether or not the Commission should seek a fuller list of employees who were included and excluded from the ballot and it deals with Mr Blackburn's assertion that this application of discovery is just a fishing expedition, we should provide some evidence, we should be put to the test, we should, you know, challenge the position that has been put by Silver Chain, we certainly do and the evidence part of which is contained in Mr Tyrrell's affidavit and we are prepared to make it available for him now.
PN546
THE DEPUTY PRESIDENT: Yes. Well look, at this point - is there anything - can we leave the affidavit and the providing of that to one side at the moment, are there any other issues that you wish to raise with respect to the request for discovery and the adjournment request?
PN547
MR KELLY: Yes, well as far as what has already been provided by Silver Chain in respect of the ballot they acknowledge that on the day three employees - they received ballot papers from three employees. They were excluded from the ballot process on the basis that they, on the day, were believed to be not eligible. Now we have had an explanation provided today that one of the individuals had changed their name, one of the individuals was a new employee and one of the individuals was a casual who didn't work during the period of the ballot.
PN548
While you could accept that the first two explanations don't disclose any irregularity, someone changing their name or someone, as a new employee they would properly have been entitled to a ballot, that is not a problem, but the fact that an employee who was not entitled to a ballot on Silver Chain's own assessment, they were a casual who didn't work, someone who was - they were nevertheless sent a ballot.
PN549
Now there was - that is an obvious defect in Silver Chain's balloting process. Now the question we would ask, we don't accept that what Silver Chain had submitted in respect of their casuals is valid. We think there is a real question as to whether some other persons who were characterised by them as casuals should have received a ballot, but on their own admission one person who they didn't think should, did receive a ballot. Now in our view, it is not a question, as Mr Blackburn indicated, he referred to the case where essentially one person got a vote who shouldn't have got a vote and did that affect the result? Well the answer was no, because in those cases the Commission has been content that that was a single error so one vote wouldn't have made a difference.
PN550
What their own admission has divulged is that somebody who shouldn't have got a ballot paper did get one. Now there are a whole number of employees out there would could potentially have either been deprived a ballot or been sent one when they shouldn't have. So the fact that it was only one and the result in the ballot was not won is not, to our point, the point. The point is: Can the Commission be satisfied that only people who got ballots should have got ballots? And can the Commission be satisfied that people who should have didn't when they have acknowledge on their own admission that there was at least one error.
PN551
So on that matter alone we say the Commission should seek to find out more about what was the roll and how was it determined? It is as simple as that. If Silver Chain had come on today and possible said, well we have demonstrated that things are absolutely squeaky clean, there was no mistakes, but on their own admission there has been at least one error. Now in Mr Tyrrell's affidavit he outlines that the union is aware of one person who we believe should have got a ballot and didn't. So that would have been a second person, but - so in our view there is a real issue about who got ballots and who didn't.
PN552
Mr Blackburn did make an assertion that this is information - this is a request that the union has left until the last minute to make and the Commission should have a view on that. Again, the affidavit of Mr Tyrrell will indicate that on the day of the ballot - that the ballot was counted we requested a copy of who had been given ballots and that was declined. We requested to be able to view the list of people who had been given a ballot and that was also declined. So the issue of the roll was a matter that we raised on the day the votes were counted.
PN553
So, and that was some weeks ago. So it is not the case that this request has come late. It was made at the appropriate time when the ballot was counted and it was declined. As for whether or not the documents, you know, are relevant or subject to legal privilege, well, of course, whether subject to legal privilege or relevant is a matter for the Commission to determine when the documents are produced. We will obviously accept that whether or not they are relevant is relevant to whether they were discovered to us, but the normal procedure is for the documents to be produced and for the Commission, if there is some doubt as to relevance or legal privilege to make the decision at the time, not simply just to say they are irrelevant in a general sense or they are subject to legal privilege.
PN554
That matter can only be determined when the documents are before the Commission. And as I indicated this is not an attempt merely to delay the process. We have given an undertaking in respect of the stay of the proceedings and we have demonstrated that there are some serious issues and the adjournment should be granted and the discovery application is appropriate on that basis.
[2.43pm]
PN555
THE DEPUTY PRESIDENT: Well, Mr Kelly and Mr Blackburn, what I will - your application for an adjournment is declined and it is declined on the basis that one of the requirements of the legislation is the Commission to act in a manner that facilitates the making and certification of agreements and it is my view that the - anything that can be put should be put and should be put immediately. With respect to your application for discovery, I won't decide on that at the moment, but we will deliberate on it.
PN556
Now whether that prejudices you or creates a difficulty for you in putting the submissions you wish to put, I would like some comment, some further comment from you, but your application for adjournment is declined and I will deliberate on the issue of the application for discovery. Now it is a question of whether you are in a position to be able to put any submissions further today, Mr Kelly, in the absence of that decision on discovery.
PN557
MR KELLY: Well, Deputy President, I suppose I am in your hands. I can proceed based upon what I have.
PN558
THE DEPUTY PRESIDENT: Yes.
PN559
MR KELLY: But certainly if at a subsequent time - well, my preference would be to know whether we are going to get access to the additional material before I am asked to make my submissions, but I am in your hands in that regard.
PN560
THE DEPUTY PRESIDENT: Well, can I leave it on this basis - could I put it on this basis then, Mr Kelly. For you to put your submissions and present any evidence you wish to present and if you make a later application for discovery based on - or a re-application for discovery prior to me determining the issue, then I will consider it at that time, or if you wish to put any further issues in relation to an order for discovery, I will consider that at that time, but you will have every opportunity to put anything further at that point.
PN561
MR KELLY: All right, sure.
PN562
THE DEPUTY PRESIDENT: And I will leave it to you when and if you wish to raise that.
PN563
MR KELLY: Yes, right.
PN564
MR BLACKBURN: Your Honour, might I just perhaps make a suggestion at the moment. I appreciate your Honour's previous comments about interrupting the other parties. If I could though just - the application, the request for an adjournment, a concern to us is that the - - -
PN565
THE DEPUTY PRESIDENT: Well, I declined the request for an adjournment.
PN566
MR BLACKBURN: Yes, I appreciate that, your Honour. The concern we have is that it may provide the union with a ground of appeal on the basis that it has been denied procedural fairness and the concern that Silver Chain has obviously is - - -
PN567
THE DEPUTY PRESIDENT: May well do.
PN568
MR BLACKBURN: Not to be - yes, thank you. I would - your Honour, we would not oppose an adjournment at the conclusion of today's proceedings if Mr Kelly had put his case simply to - on the basis that he has made the request to allow him to consider those documents and on the basis that then the State award matter would not proceed. The limits around that would be that the purpose of the adjournment would be to enable him to consider the document - the financial calculations.
PN569
THE DEPUTY PRESIDENT: Well, we will see - if we get to that point we will see then, Mr Blackburn, but the request for an adjournment was made, it has been declined, you had an opportunity to put submissions, you opposed it, and I have found in your favour.
PN570
MR BLACKBURN: I didn't actually put submissions in relation to the adjournment, your Honour, but - - -
PN571
THE DEPUTY PRESIDENT: Well, you were given the opportunity to.
PN572
MR BLACKBURN: Yes, thank you.
PN573
MR KELLY: Yes, thank you, Deputy President. As I indicated - I will try not to go over too much old ground. In our view we don't believe this agreement is suitable for registration on the basis of we don't believe that there was genuine agreement in the making of the agreement with employees. There was not a valid majority or serious doubts over that and we don't believe that the no disadvantage test has been met to the satisfaction of the Commission.
PN574
Now at - if I can briefly, before I call a number of witnesses, at 170LT(6) the Act provides that:
PN575
If the agreement was made in accordance with 170LK, a valid majority of persons employed at the time whose employment would be subject to the agreement must have genuinely made the agreement.
PN576
Now we obviously place considerable weight - we submit that considerable weight should be given to the question of the agreement having genuinely been made. It is not in our view sufficient for the Commission to come to the conclusion that a vote has been taken and a majority in the voters has been provided, therefore it has been genuinely made. It requires the Commission - this section of the Act requires the Commission to inquire or be open to the possibility that something more is required.
PN577
Now in this case we believe the employer fundamentally misled the employees about the nature of the agreement and the circumstances surrounding the making of the agreement. Briefly this employer conducts a variety of operations, employs enrolled nurses in a variety of circumstances and broadly put they employ enrolled nurses in nursing homes, they employ enrolled nurses to work in aged hostels and they employ enrolled nurses to work in what they call the community care sector where nurses work - provide care in resident's own homes.
PN578
Now the union was attempting to negotiate a collective agreement with Silver Chain to cover the community enrolled nurses and a number of matters were agreed between Silver Chain and the union on a without prejudice basis. Now there were a number of issues that were outstanding. It was the union's position that it did not agree that the agreement should cover enrolled nurses employed in the nursing home sector or the hostel sector because the evidence will show they are already covered or those facilities already cover a number of awards which have a standard of conditions.
PN579
The union was 100 per cent opposed to the agreement applying in those areas. There was absolutely no agreement between the union and the employer on terms and conditions that should apply to ENs in hostels or in the nursing home sector, absolutely zilch agreement on any issue. There was also then the disagreement about whether or not the collective agreement should contain an AWA clause. Now at that point the negotiations broke down and Silver Chain withdrew from the negotiations.
PN580
Silver Chain then in - the information provided to its enrolled nurses - sorry, Silver Chain then took the decision to ballot for a 170LK agreement which would cover enrolled nurses in all those sectors. In exhibit A7 they provided a copy of the covering letter to the agreement. Right up front in paragraph 2 of exhibit A7 - - -
PN581
THE DEPUTY PRESIDENT: Just let me mark that - yes?
PN582
MR KELLY: This was the covering letter that went with the agreement. The second paragraph reads, or first paragraph says:
PN583
There were negotiations between Silver Chain and the union.
PN584
The second paragraph then goes on to say:
PN585
Unfortunately these negotiations have not resulted in an agreement.
PN586
They then say:
PN587
There was general agreement on wages and conditions, but the sticking point at the end was the union's insistence that Silver Chain not be able to access Australian Workplace Agreements to meet specific operational requirements.
PN588
Quite incorrectly, and we would say quite - I mean carelessly, mischievously or whatever you would like to put it, they gave the stamp of approval from the union to the terms and conditions contained within the 170LK agreement. By saying that there was general agreement on wages and conditions, but the sticking point was just the AWAs was absolutely incorrect. Firstly in respect of nurses in the community care sector, what had been agreed had been on a without prejudice basis and if I can - that has been the submission put by Silver Chain in the proceedings in the State Commission and if I can provide you with a copy of the answer and counter proposal put by Silver Chain in the proceedings before Commissioner Scott.
PN589
THE DEPUTY PRESIDENT: Well, I mean this is a - what, in an application for an award this is the response to the State Commission. How is this relevant to me?
PN590
MR KELLY: Your Honour, if I can take you to the second page at paragraph 9, Mr Blackburn, who is the author of this document on behalf of Silver Chain said:
PN591
The negotiations between the respondent and the union were conducted on a without prejudice basis and on the footing that nothing was agreed until everything was agreed. It was therefore not correct to say that the terms of the proposed award were agreed between the respondent and the union.
PN592
Now - - -
PN593
THE DEPUTY PRESIDENT: But still what has that got to do with me? I mean what I have got is an agreement in front of me, not the negotiations in arriving at the agreement, so what has this actually got to do with these proceedings is what I am asking?
PN594
MR KELLY: Well, we say that the statement in A7, in the second paragraph of exhibit A7 that there was general agreement between the union and Silver Chain on wages and conditions was fundamentally wrong and fundamentally misled staff about the terms of the agreement they were being asked to vote on and that goes to, did people genuinely make the agreement? Now one issue that goes to the question of genuineness is obviously whether people were properly informed or were people coerced.
PN595
Now in these circumstances we say people were fundamentally misinformed. Now I was simply making the submission that the negotiations between the union and Silver Chain in respect of the community nurses were without prejudice and therefore nothing had been agreed. Now I am simply providing this documentation at least - - -
PN596
THE DEPUTY PRESIDENT: So what you are saying is this is inconsistent with the submissions that have put.
PN597
MR KELLY: If Silver Chain are saying that A7 was at least correct as far as the community nurses were going, because we had agreement with the union, well, they can't put that submission. In other proceedings they have acknowledged that nothing was agreed until everything was agreed.
PN598
THE DEPUTY PRESIDENT: I see.
PN599
MR KELLY: So this supports our submission that in respect to the community nurses the statement in the second paragraph of A7 is fundamentally not correct.
PN600
THE DEPUTY PRESIDENT: Look I will accept it as an exhibit.
EXHIBIT #R3 ANSWER AND COUNTER PROPOSAL PUT BY SILVER CHAIN IN PROCEEDINGS BEFORE COMMISSIONER SCOTT
PN601
MR KELLY: Now we will call evidence to show that in respect of enrolled nurses employed in the hostels and the nursing homes, that there was absolutely no agreement. So we say A7 was fundamentally incorrect in the information that it provided to employees, and employees are entitled, if you like, to take into account a number of issues when determining whether or not an agreement is worth voting yes or voting no for. One of those issues that we say would have influenced their vote is whether or not the union that represented them or was able to represent them had, if you like, given a tick to the wages and conditions.
PN602
And in this case the fact that the employer had provided that information, we say fundamentally misinformed employees. Now this - your Honour, this perception that the union had agreed to the terms and conditions in the document was in part, we say, fortified by the fact that the actual agreement itself referred to the union even though the union was not supporting its registration. At clause 6 of the agreement there is a definition there:
PN603
Union means the Australian Liquor, Hospitality and Miscellaneous Workers' Union.
PN604
So the LHMU is actually named in this agreement, notwithstanding that it is not a party to the agreement, certainly not at the time of the ballot, and again in the disputes procedure there is a reference to the union, so that again fostered the inference amongst employees that the union had somehow given its imprimatur to this agreement. We also make submissions on the issue that you raised earlier. There is nothing in the documentation which actually said it was an LK agreement and not an LJ agreement.
PN605
THE DEPUTY PRESIDENT: It wasn't so much the specific sections of the Act I was referring to, rather the implications and the content of those sections.
PN606
MR KELLY: Yes, I appreciate that and I am not suggesting that you made any judgment in the questioning you asked Mr Blackburn, but we would certainly submit - make an opposing submission to that put to Mr Blackburn - sorry, from Mr Blackburn. He said, well, if it had said it was a 170LK instead of 170LJ, that wouldn't have meant much to any of the nurses affected. It was - well, did they understand it was an agreement between Silver Chain an employees or Silver Chain and the union.
PN607
In our view it would have been appropriate to identify which section of the Act the agreement was going to be registered under, if people are going to genuinely agree to its registration. Now, you know, delicacies of, well, is it between Silver Chain and the employees or Silver Chain and the union, they are things that many workers don't understand. There is an obligation, we say, for the employer to quite upfront say, "Well, if you vote for this agreement, it will be registered under whatever section of the Act that is appropriate", and the information package doesn't say that.
PN608
THE DEPUTY PRESIDENT: Yes.
PN609
MR KELLY: We say that again goes to the question of whether or not genuine agreement has been outlined. Now - - -
PN610
THE DEPUTY PRESIDENT: Are you not suggesting they didn't comply with LK(4) are you, about the capacity for representation?
PN611
MR KELLY: No, I am not suggesting that, I am simply saying it goes to the question of genuine agreement making.
PN612
THE DEPUTY PRESIDENT: Yes, I understand that.
PN613
MR KELLY: And part of that - an element of that is being properly informed. Now we would say that the content of exhibit A7, the second paragraph which gives the union rubber stamp or the union tick of approval to the terms and conditions, we would say that in itself is such a fundamental exercise in misinformation that that in itself would render this agreement not able to be certified.
PN614
THE DEPUTY PRESIDENT: So what you are saying it should have said, "The union will not be a party to this agreement?"
PN615
MR KELLY: Well, it should not have said that the union has - or that we have reached - that Silver Chain has reached general agreement with the union on terms and conditions, because it had not.
PN616
THE DEPUTY PRESIDENT: Yes, that is the first step and then - - -
PN617
MR KELLY: Then it should have said that this is an agreement between Silver Chain and employees and it will be registered under section 170LK of the Workplace Relations Act.
PN618
THE DEPUTY PRESIDENT: Or will be sought to be registered without the union being a party.
PN619
MR KELLY: Or sought to be registered, yes.
PN620
THE DEPUTY PRESIDENT: Okay, I understand.
PN621
MR KELLY: That is a - Deputy President, I have already indicated that there are some issues about - sorry, and before I move off that issue of genuine agreement, we have already heard a submission from Silver Chain that five employees have been misled by Silver Chain inadvertently, and we don't say that there was any deliberate mischief in what they did, but they have nevertheless been misled about the benefits of the agreement vis-a-vis their remuneration. Now on the best result for Silver Chain the ballot was 36/50.
PN622
If you assume, and Mr Blackburn has conceded this point, that you must assume that those five, had they been properly informed, would have voted the other way that would bring a result of 41 to 45. The result then is very slim. There is a number of people who - at least one person Silver Chain acknowledges received a ballot who should not have. They were a casual who didn't work. They have alluded to there being a number of casuals who also would not have got a ballot because they didn't work.
PN623
MR BLACKBURN: Well, we object to that. We will make the point that we don't acknowledge any error in who received the ballot.
PN624
THE DEPUTY PRESIDENT: Yes, well, you will get your opportunity, Mr Blackburn. Mr Kelly has got his now.
PN625
MR KELLY: There appears to have been a number of casual who didn't get a ballot because they were excluded because the - Silver Chain had a rule, if you like, that if you didn't work in the roster period of the ballot, you weren't eligible. Now Mr Blackburn - to explain that rule, if you like, he referred to the State Workplace Agreement that casuals are employed under and that was exhibit A15, and in A15 he took us to - apologies, Deputy President.
PN626
I am obliged to Mr Blackburn. It was exhibit A4 which goes to - A15 was the General Workplace Agreement, A4 is the Casual Workplace Agreement under which employees are employed under. He took us to paragraph - clause A2 which says, "Engagements", and then he refers to 5.2.1. It says:
PN627
Separate contracts of employment will arise upon each acceptance by the employee of each offer of work. Offers of work and acceptance may be either oral or written.
PN628
And he relies on that to demonstrate that each casual engagement was a separate engagement and therefore it fortifies the issue that you didn't - I presume it fortifies the view that if you didn't work during the period of the roster, well, then you weren't an employee and therefore you weren't entitled to a vote. If I can just refer your Honour to the Workplace Agreements Act which is now defunct and my apologies, Mr Blackburn, but I have only got two copies. Do you want to have a - this is only a copy produced from - well, it is a - it is not an official copy but it is produced by - - -
PN629
THE DEPUTY PRESIDENT: CCH or someone, is it?
PN630
MR KELLY: I am not - I think it is the Parliamentary Counsel's Office, but it is not an official copy, but I have no reason to suspect - - -
PN631
THE DEPUTY PRESIDENT: Anyway if you can refer to it and I will look at it later.
PN632
MR KELLY: Yes. Section 5(3) of the Act talks about the contract of employment, the relationship between contracts of employment and workplace agreements and specifically at clause 5, sub-clause (3) says:
PN633
Nothing in this Act is to be taken to prevent: (a) any contract of employment or a workplace agreement between an employer and an employee being entered into at the same time or any contract of employment between an employer or an employee being in the form of a workplace agreement.
PN634
It makes it clear that the contract of employment and the workplace agreement are something quite similar - sorry, quite distinct and that was a consistent theme under that scheme of regulation. The workplace agreement can operate quite separately from the contract of employment. That view is fortified by section 6 of the same Act. Section 6(1) says:
PN635
Where a workplace agreement, (a) has been made between an employer and an employee under a contract ...(reads)... employee as a party to any such contract so long as the workplace agreement remains in force.
PN636
So again the Act contemplates that the contract of employment is separate to the workplace agreement. And finally in 6(4):
PN637
A workplace agreement does not displace the contract of employment between an employer ...(reads)... regardless of any such provision.
PN638
Now we simply make the point because you can't just look at the workplace agreement and say, well, they agree that everything was separate, therefore that is the end of the matter. In our view - sorry, we will lead evidence that there were quite - in all likely there were quite a few casuals employed by Silver Chain, they were likely to be casuals who had been employed on an ongoing basis rather than a spasmodic basis, so in our view when determining whether or not they should be, or were entitled to a vote, simply to say, well, did they work in that roster period is not sufficient.
PN639
It is the concept of, you know, heaven forbid a permanent casual or an ongoing casual, all those issues - certainly in this industry where casuals are not people who work necessarily spasmodically or irregularly, they need to be considered and we say - - -
PN640
THE DEPUTY PRESIDENT: Well, how do they work?
PN641
MR KELLY: Well, certainly they can be on a roster, but paid as casuals, and we say in those circumstances the distinction that has been employed by Mr Blackburn on behalf of Silver Chain is an artificial one, simply to say if you weren't employed in that week or that fortnight that the ballot was conducted, you were not an employee is, we say, an arbitrary requirement that is - requires further investigation.
PN642
THE DEPUTY PRESIDENT: So what you are saying is any other fortnight or week or period or whatever, there is a potential group of employees who could be affected by this agreement?
PN643
MR KELLY: We say absolutely. There could have been people who worked the week before and the week after and have worked ever since, but because of whatever reason they didn't work in that roster period, they have been excluded from the ballot. Now - - -
PN644
THE DEPUTY PRESIDENT: But how is the - I am struggling to see what the implication of what the distinction you are trying to draw and I think have drawn between the requirements of the pre-existing Workplace Relations Act and the contract of employment. What is the implication of that?
PN645
MR KELLY: Look I only raise that because Mr Blackburn sought to say, well, under the workplace agreement the parties signed up to and acknowledged that every engagement was separate and distinct.
PN646
THE DEPUTY PRESIDENT: Yes.
PN647
MR KELLY: So if you worked for two years before the week of the ballot as a casual and then you stopped working and then you worked the week after and have ever since, I presume a submission on behalf of Mr Blackburn is that you agreed in your workplace agreement that every engagement is distinct. What I am saying is, notwithstanding that that is what it might say in the workplace agreement, even the Workplace Agreements Act recognised that the contract of employment is distinct from the workplace agreement.
PN648
THE DEPUTY PRESIDENT: Yes.
PN649
MR KELLY: So the contract of employment for those individuals may be if they well understood that even though they were paid as casuals, they had an ongoing expectation of work, and on that basis the fact that they could have gone fishing for the week of the ballot, but they didn't consider themselves no longer to be employed by Silver Chain. Now that may not be a consideration where there is a very small number of casuals who worked on an irregular basis.
PN650
Our suspicion is that Silver Chain employed a significant number of casuals who worked a considerable amount of time and that is why we say just their arbitrary rule is not sufficient.
PN651
THE DEPUTY PRESIDENT: So what - let me understand this properly, Mr Kelly. So what you are saying is that they were employees.
PN652
MR KELLY: Yes.
PN653
THE DEPUTY PRESIDENT: And notwithstanding that they may not have been engaged for that period during the ballot, they were nevertheless employees who were entitled to vote for the purposes of the agreement.
PN654
MR KELLY: Yes.
PN655
THE DEPUTY PRESIDENT: Is that what you are saying? Because you are submitting that they had a contract of employment and I gather what Mr Blackburn is saying is, no, they didn't.
PN656
MR KELLY: Yes, that is correct.
PN657
THE DEPUTY PRESIDENT: Yes.
PN658
MR KELLY: We say, notwithstanding that they were paid as casuals, they weren't subject to any award, for example, because of the workplace agreement, notwithstanding - they were paid as casuals, sure, but they nevertheless had a contract of employment that should have entitled them to a vote.
PN659
THE DEPUTY PRESIDENT: Yes.
PN660
MR KELLY: In respect of the no-disadvantage test we say, in respect of what the test should be measured against it may not - well, it may surprise the Commission but we have a different view to that put by Mr Blackburn as far as what is the relevant award that should apply.
PN661
THE DEPUTY PRESIDENT: Well, it doesn't surprise me at all.
PN662
MR KELLY: You know, I don't cast any dispersions on Mr Blackburn as to what has happened, but this has been quite a complicated issue.
PN663
THE DEPUTY PRESIDENT: Has it?
PN664
MR KELLY: Thankfully, Deputy President, I haven't been subjected to some of the earlier proceedings. I think I am the only one at the bar table in the court who hasn't. As indicated we - well, there are three sections of nurses. In the nursing homes I think Mr Blackburn and the union would agree that the Enrolled Nurses and Nursing Assistants Private Award, an award of the State jurisdiction is a relevant award for the purposes of the no-disadvantage test.
PN665
In respect of, and we don't quibble with the Superannuation Award that Mr Blackburn has referred to being a relevant award as well, but in respect of nurses employed in the community sector we say the Enrolled Nurse and Nursing Assistants Private Award is also a relevant award for the employees in the community sector. Now Mr Blackburn's submissions this morning and the comparisons that they made proceeded on the basis that the only relevant award for the community nurses is the Superannuation Award.
PN666
Now, the definition of a relevant award at 170X of the Act - and Mr Blackburn made this submission this morning in respect of - I forget which award it was, but he said that a relevant award under section 170X in relation to a person to whom an agreement will apply means an award, (a) regulating any term of condition of employment of persons engaged in the same kind of work as that of a person under the agreement and (b) that immediately before the initial day of the agreement is binding on the person's employer. Now, the Enrolled Nurse and Nursing Assistants Private Award in the state jurisdiction regulates the term or condition of employment of persons engaged in the same kind of work as the person under the agreement.
[3.19pm]
PN667
Enrolled nurses providing nursing care in accordance with the competency they have registered under the Nurses Act in a nursing home, we say, does the same kind of work as the enrolled nurses employed providing nursing care in the community sector and of course that award immediately before the initial day of the agreement is binding on Silver Chain. So - - -
PN668
THE DEPUTY PRESIDENT: But that is not what - my vague recollection of what was said in the 170XF proceedings, I think, your organisation consented that there was no relevant award for the domiciliary nurses.
PN669
MR KELLY: Yes, well, your Honour, I think you already have Silver Chain acknowledge that those proceedings were proceeded on the basis of an error. The submission that we put in those proceedings, we would say, was also an error.
PN670
THE DEPUTY PRESIDENT: Well, we have got the trifecta, have we not?
PN671
MR KELLY: That is right, two errors assisted you in making yours, that is right. We would say enrolled nurses in the nursing home sector do the same work, or the same kind of work, as enrolled nurses in the community sector; the only difference between, one does it in the nursing home, one does it in the person's home, but essentially they provide nursing care. You couldn't possibly say that they don't perform the same kind of work so we say the Enrolled Nurses and Nursing Assistants Private Award is a relevant award for the nurses in the community sector.
PN672
We also say it is a relevant award for enrolled nurses who perform work in the hostel sector as well because they are employed by Silver Chain to provide nursing care in hostels. Now, again - so we say for the whole of this agreement, The Enrolled Nurse and Nursing Assistants Private Award is a relevant award for the purpose of the no disadvantage test.
PN673
THE DEPUTY PRESIDENT: Yes, and most certainly for the 13 enrolled nurse at - - -
PN674
MR KELLY: I think we are in agreement at the bar table that for the 13 enrolled nurses in the nursing homes that it is - - -
PN675
THE DEPUTY PRESIDENT: No question.
PN676
MR KELLY: No question. I think we part company on whether it is a relevant award for the community sector and the hostel sector but that is what we are submitting.
PN677
THE DEPUTY PRESIDENT: Yes. Mr Kelly is there any - on that submission is there any transferability of enrolled nurses between the various types of nursing or sectors?
PN678
MR KELLY: Well, your Honour, some of the evidence that we will lead goes to the fact that there is now no legal distinction between a nursing home and a hostel. They were previously regulated under two separate Acts - - -
PN679
THE DEPUTY PRESIDENT: Yes, but with respect to the domiciliary nurses, is there any transferability of nurses into and out of that sector?
PN680
MR KELLY: I can't for certain tell you that they do move one to the other but - - -
PN681
THE DEPUTY PRESIDENT: Yes.
PN682
MR KELLY: - - - my belief is that they do. There would be no reason why they could not.
PN683
THE DEPUTY PRESIDENT: Perhaps Mr Blackburn can inform us of that later.
PN684
MR KELLY: Yes, yes, I mean, there is no legal impediment. I have been advised that certainly we are aware that enrolled nurses who work in the community sector do, for example, enter the hostels and do dressing for residents in the hostels. We can confirm that later through evidence but that is our understanding. Now, Mr Blackburn has gone to considerable lengths - has gone to considerable length this morning to provide mathematical equations which show that staff under this agreement - under this proposed agreement will be better off and he has put some considerable effort into addressing the 13 who we say are employed in the nursing homes.
PN685
He has gone to considerable effort to demonstrate that in a monetary sense they - or a mathematical sense, they are better off. Now, in our view, Deputy President - and while we don't reflect - seek to reflect badly on the work that Mann Judd have done I suppose we can characterise the employer's approach to this agreement and the no disadvantage test as a bean counters approach. What we would say the Commission is required to do is to look at the conditions that are being lost in order to gain those - that additional monetary amount not simply looking at the monetary amount.
PN686
Now, at the end of these proceedings I will hopefully provide a more detailed summary but just to indicate to you a number of the differences between the agreement and the Enrolled Nurses and Nursing Assistants Private Award, which we say go to overall demonstrating a disadvantage to employees who would be subject to the agreement, are as follows. Employees under the private sector award have access - some of them have access to 12 accrued days off each year. Now, that is not an entitlement that exists under the LK agreement. So that is 12 recreational days off that are available to employees under the Nursing Home Award, which under this agreement, they will not get.
PN687
Under the award they were entitled to 15 minutes break on each shift - paid breaks whether they be one 15 minute break or two - they are entitled to 15 minutes paid break or two 7-1/2 minute paid breaks. That is not available under the agreement. Under the award employees are entitled where practicable to two consecutive days off per week in rostering. Under the agreement the entitlement is only for two consecutive days off per fortnight. Now, as far as leave goes, Deputy President, under the award employees are entitled to six weeks annual leave as a matter of course and an additional seventh week if they are an employee who works a rotating shift.
PN688
Under the agreement, while under the annual leave clause it says you are entitled to six weeks annual leave, if the employer decides to roster you off on a public holiday they can pay you for the day and nevertheless send you home, pay you 150 per cent loading and deduct a day from your annual leave. So quite possibly an employee's entitlement under the LK agreement, instead of being seven weeks, could be as low as four weeks annual leave. Again, they will say, well, they are being compensated because they have converted those entitlements into a monetary component.
PN689
What we would say, and I will call some evidence a bit later, is that in the nursing industry, especially in aged care which is really the hard yards of nursing, reducing those leave entitlements so substantially and reducing it to just a monetary value is not, in our view, sufficient. It is not as if you are not providing a uniform but instead you are providing money for the uniform. Where one equally equates to the other this is substantial leave entitlements for workers who do some of the hardest work around. In an industry where nurses are in a short supply it is not appropriate simply to - as the employer thinks you can, buy out those leave entitlements.
PN690
There are - there is one other - there are a number of other monetary reductions, casuals, for example, under the agreement are only entitled to a 20 per cent loading whereas under the award it is a 25 per cent loading. Mr Blackburn has already acknowledged the loss of the afternoon shift penalty from the agreement which under the award is applicable to somebody who starts after 12 noon but finishes after 6 am. That disappears and is replaced by a payment for hours worked between 7 pm and 6 am. But there is also one other, what we say, is a glaring deficiency in the non union agreement they have not addressed and that is the requirement to provide a roster for people.
PN691
Now - and I am sorry I have just realised we have neglected to provide a copy for the Commission. I assume Mr Blackburn has got a copy. I will provide it, obviously, before this matter is concluded. Under the Nursing Homes Award there is a requirement for a roster to be provided, clause 18. There is a requirement under clause 18 of the award that:
PN692
A roster shall be posted in a convenient place where it can be readily seen by employees concerned. The roster shall be -
PN693
I am obliged to Mr Blackburn, he has just provided me with a copy and to the Commission.
PN694
THE DEPUTY PRESIDENT: What clause was that?
PN695
MR KELLY: It is clause 18, Deputy President.
PN696
THE DEPUTY PRESIDENT: Yes.
PN697
MR KELLY: Clause 1 and 2 simply say that there should be a roster and where it should be placed. Sub clause (3) says:
PN698
The roster shall be posted at least 48 hours before it comes into operation and may be altered by 48 hours notice but this shall not prevent a part time employee working additional shifts in accordance with sub clause (5) of clause 28, part time employees of this award.
PN699
So while it is not - - -
PN700
THE DEPUTY PRESIDENT: Does that apply to casuals?
PN701
MR KELLY: We would say it applies to all employees. There is no - the award exempts casuals specifically from a number of clauses, the roster clause is not one of them. We would say employees - casuals rostered - placed on the roster then they would be entitled to 48 hours notice for a roster change. But certainly for part time or full time employees there is at least a requirement to have a roster. The roster has got to be put up 48 hours before it comes into effect and it can only be changed withy 48 hours notice. Now, Deputy President, we would consider the requirement to have a roster and at least have some notice of when you have to come to work and when you don't have to come to work, is pretty fundamental.
PN702
It is a fairly archaic employment arrangement which allows an employer to dictate when an employee comes to work without any obligation on them to provide notice. Now, the union agreement does not contain a roster clause. So - - -
PN703
THE DEPUTY PRESIDENT: Well, it is a condition of employment, is what you say.
PN704
MR KELLY: Yes.
PN705
THE DEPUTY PRESIDENT: Or a term of employment.
PN706
MR KELLY: Yes, and so the employer could simply at will require people to attend work, go home, not come to work, come back and the like. Now, in our view, that is an appalling structure under which employees would be expected to work and that, in our view, almost in itself - in the old days employees used to drive past in a truck and pick people off the street corner and invite them to come and work. Now, these days it is done by a telephone; you don't use a truck, you just ring people up and when they get there you tell them you don't need them anywhere and you send them home.
PN707
Those practices are able to be put in place unless there is some limitation on it. This non union agreement - there is nothing. The only - and my friend might take - draw you to a provision in the agreement which says employees must - will be given a guaranteed minimum number of hours each fortnight. I am not sure which section that is - it might be under - clause 8, part time employees, sub clause (d) - paragraph (d):
PN708
Each employee shall be given written advice stating the minimum fortnightly hours of employment set by the employer.
PN709
Now, you know, what might that be. It may be two hours per fortnight or it might change each fortnight; who knows, but certainly if it only goes to the number of hours it doesn't go to when you work them and what notice you will have to require - be required to attend for work. Now, in our view, it is a very dangerous precedent to say the few extra dollars that have been provided to employees by virtue of this agreement is sufficient to buy out any requirement for notice, any requirement for rostering to allow the employer to require people to attend and not attend for work at will.
PN710
But, Deputy President, I would seek to be able to provide a more comprehensive list than I have today of the deficiencies that we say exist in the agreement but I am happy to - I anticipate being able to - - -
PN711
THE DEPUTY PRESIDENT: You will be provided with that opportunity - - -
PN712
MR KELLY: Yes, yes.
PN713
THE DEPUTY PRESIDENT: - - - and it will be, I am sure, made available to Mr Blackburn.
PN714
MR KELLY: Thank you.
PN715
THE DEPUTY PRESIDENT: I might add you will also be provided the opportunity to make any comment on exhibits A13 and A14.
PN716
MR KELLY: Yes, your Honour, I did neglect to raise one issue in respect of the role, if you like, that Silver Chain has used for the ballot and if I can just deal with that before - I am then able to call my first witness, if that is your wish. The agreement - the application - clause 3 application of the agreement outlines that:
PN717
This agreement shall imply -
PN718
sorry -
PN719
shall apply to the Silver Chain Nursing Association Incorporated -
PN720
and then there is an ABN number (the employer) -
PN721
and all enrolled nurses employed by the employer in the state of Western Australia.
PN722
Now, enrolled nurses is defined in sub clause (6), definitions, as:
PN723
Enrolled nurse means a person whose name is entered into division 2 of the register maintained under the Nurses Act 1992 (WA).
PN724
Now, the reason I raise that is because the way that that is framed raises an interesting point, in our view. It does not say that this agreement shall apply to persons employed by Silver Chain as enrolled nurses it says it applies to all enrolled nurses employed by Silver Chain. Now, we ask the question, it may be that there are persons employed by Silver Chain not in the capacity of enrolled nurses but who are nevertheless enrolled nurses in that their name is on the register kept by the Nurses Board.
PN725
Now, we raise the issue for Silver Chain to answer - they employ a number of persons employed under various clerical awards, they employ a number of people in other capacities, not as enrolled nurses - we merely ask the question whether or not there are persons employed by Silver Chain not as enrolled nurses but who nevertheless are enrolled nurses because their names are still on the role from the Nurses Board and who therefore - their employment would in the terms of this agreement be bound by it who did not get a vote.
PN726
So, now, we suspect - well, we hypothesise that the reason why this - the agreement was couched in these terms by the employer is because, for example, in hostels, there is a Federal Hostels Award which covers persons who, for example, provide personal care but they are not called enrolled nurses, the are called supervisors or assistant supervisors, but in effect, they provide care for residents. Now, we can only surmise that the employer framed the agreement in these terms so that if those person in the hostels, even though they may have been employed as a supervisor or an assistant supervisor, if they are registered under the Nurses Act they would nevertheless be picked up by this agreement.
PN727
Now, that was Silver Chain's - it was their decision to frame the agreement in this way to ensure that they pick those people up, but we simply ask the question, well, are there other persons in Silver Chain's employment who have been picked up by this agreement and who may not have been provided with a ballot. Your Honour, I think, they are the only submissions I would want to make at this stage. I would now be in a position, if you wish - - -
PN728
THE DEPUTY PRESIDENT: Just before you - I anticipate you are about to call Mr Tyrrell, just before you do, you said earlier that with respect to 170LK(4) you had no issue with that being complied with. Does that apply to - is that the same submission for LK(7) or not?
PN729
MR KELLY: No, we would say the submissions that we have put - 170LK(7) goes to the employer taking reasonable steps to ensuring that the terms of the agreement have been explained. Now, we don't say that that has occurred. We say it goes to our submission that people were fundamentally misinformed about the agreement. Now, Mr Blackburn has sought to make a distinction under the provisions of this Act and the old Act by saying the 1988 Act referred to people being - having the terms and the effect of those terms, I think, explained to them.
PN730
In our view, certainly as far as - well, was it a union agreement, was it a non union agreement - the terms of the agreement must encompass what it was.
PN731
THE DEPUTY PRESIDENT: But that LK(7) refers to reasonable steps so it would include, presumably, the opportunity for any employee who is considering being party to the agreement, or could be party to the agreement, having anything that concerns them or any opportunity to raise issues or canvass issues. So it does not just go to the document that is - provide them, does it?
PN732
MR KELLY: No, it does not, it also goes to the issue of reasonable steps.
PN733
THE DEPUTY PRESIDENT: Yes.
PN734
MR KELLY: Now, we will certainly be calling evidence that in respect of employees in the nursing homes and hostels, the first they knew about the whole process was when they got served with a copy of an agreement.
PN735
THE DEPUTY PRESIDENT: Well, perhaps if I can target it a little more specifically, taking into context your hats, the employee who has requested you to be intervening on that employee's behalf, are you asserting that that employee did not consider the information and the steps to be properly explained?
PN736
MR KELLY: Your Honour, in respect of that individual employee, because she is a member of ours and she sought advice and was able to do that, I don't think we would sustain a submission on her behalf that that had not been complied with. But I don't believe that it is the submissions that we put on her behalf limits the Commission to a consideration of her only.
PN737
THE DEPUTY PRESIDENT: Yes, I understand you have made that submission in less direct terms earlier.
PN738
MR KELLY: Because if it were the case - if this were an individual arrangement where you could make a determination that the provisions of the Act had not been complied with in respect of her only, and then on that basis she was able to opt out, well it might be different but it would be - because this is a collective agreement, one in all in, it must be the case that an individual who has concerns about the agreement as it would apply to them can say, look, a whole range of people who voted on this matter really didn't know or - - -
PN739
THE DEPUTY PRESIDENT: Yes, but, what I am getting at and I come back on - correct in my view of what 43(2)(a) allows then it is really a question of that individual that you are putting submissions on behalf of rather than the union as an organisation in 43(2)(b).
PN740
MR KELLY: I appreciate that - - -
PN741
THE DEPUTY PRESIDENT: Yes.
PN742
MR KELLY: - - - but we make those submissions on behalf of the employee and we are able to do that because what has affected everybody else affects her.
PN743
THE DEPUTY PRESIDENT: Yes, I understand what you are saying, yes. So what you are saying is 43(2)(a) does not confine the submissions you wish to make on her behalf about the potential affect on other employees even though it may not have been, or is not, her assertion that LK(7) has not been complied with with respect to her.
PN744
MR KELLY: That is correct.
PN745
THE DEPUTY PRESIDENT: Yes, thank you.
PN746
MR KELLY: Your Honour, I am in a position to call Mr Tyrrell now.
PN747
THE DEPUTY PRESIDENT: How long will your examination-in-chief take?
PN748
MR KELLY: Well, your Honour, it all depends. We have prepared an affidavit which in effect is - we will propose to have as the examination-in-chief. It is a question of whether or not Mr Blackburn wishes to - - -
PN749
THE DEPUTY PRESIDENT: What I was intending, if that is - your examination-in-chief, leaving aside his cross-examination, if he wishes to, how long would your examination-in-chief take?
PN750
MR KELLY: There might be - well - - -
PN751
THE DEPUTY PRESIDENT: I won't hold you to it but your anticipated - - -
PN752
MR KELLY: Look, I would probably be content at this stage with the affidavit.
PN753
THE DEPUTY PRESIDENT: Yes - - -
PN754
MR KELLY: - - - in respect to Mr Tyrrell. It is a question of Mr Blackburn's cross-examination.
PN755
THE DEPUTY PRESIDENT: Yes, what I propose, if you put - if you wish to lead evidence through Mr Tyrrell, if you do that I will then adjourn and then Mr Blackburn will then have an opportunity to prepare for any cross-examination and you will then also have the opportunity to more closely examine the documentation that has been provided today. It would be my intent to, following the adjournment of the proceedings today, which I will do immediately after Mr Tyrrell's examination-in-chief, to then adjourn and continue these proceedings tomorrow subject to the availability of you both. So perhaps we will explore that availability and those intentions after Mr Tyrrell has presented his evidence.
PN756
MR KELLY: Mr Tyrrell, did you prepare an affidavit for these proceedings?---Yes, I did.
PN757
Right, and is that a copy of the affidavit before you?---Yes, it is.
PN758
And to your best knowledge and belief is the contents of that affidavit true and correct?---Yes, it is.
PN759
THE DEPUTY PRESIDENT: You can tender that - I will mark that GT1.
PN760
THE DEPUTY PRESIDENT: Thank you, Mr Tyrrell, you are excused for the time being but Mr Blackburn, you will have a right to cross-examine Mr Tyrrell once you have had the opportunity to examine that affidavit. If you can ensure that you are available when that cross-examination is due to take place, Mr Tyrrell.
PN761
THE DEPUTY PRESIDENT: I will now go off the record for a moment unless you want to raise something, did you, Mr - - -
PN762
MR KELLY: Deputy President, yes, it is the case that we continue to press our application for discovery.
PN763
THE DEPUTY PRESIDENT: Yes.
PN764
MR KELLY: So I don't really argue but the point that I simply make - that application.
PN765
THE DEPUTY PRESIDENT: Yes, I will consider that and I am conscious, Mr Kelly, that I have not ruled on that but I will consider that overnight probably.
PN766
MR BLACKBURN: Your Honour - - -
PN767
THE DEPUTY PRESIDENT: Yes.
PN768
MR BLACKBURN: When Mr Kelly provided some argument in support of why the application should be granted he raised a couple of factual issues which we would seek to address. In particular one of the assertions he made - well, he raised a number of issues and we would just appreciate, sort of, two or three minutes to respond to that on the question of this subpoena for discovery.
PN769
THE DEPUTY PRESIDENT: Yes, okay, if you can do that now Mr - - -
PN770
MR BLACKBURN: Thank you, thank you, your Honour. Your Honour, you probably won't have the benefit of the transcript, but you may recall that when after I put some initial submissions in relation to the application for production of documents, when Mr Kelly replied he did so really in a way which focused on the fourth category of documents sought. He basically said - and that is documents relating to the ballot, and including but not limited to, lists of employees issued with the ballot papers.
PN771
All of his submissions really went and revolved around the ballot process and said, look, there is obviously errors in the ballot process and therefore that is why we have now raised, if you like, a presumption, and therefore that is why these documents - an order for production of documents should be made. And we say, firstly, at the risk of repeating myself, that those additional submissions were confined to that fourth category of documents he sought which are documents relating to the ballot.
PN772
But one thing Mr Kelly did appear to be under a misapprehension about was he said, well, we accept that two of those employees - there is no suggestion of an irregularity there - one employee had changed their name and the other employee had only recently been employed by Silver Chain and they had not appeared on the payroll. But he said with respect to the third employee there, he said, was evidence of an error and there might well be more errors because there he said was a casual employee who had received a ballot paper who should not have received a ballot paper and in Mr Kelly's submission there may well have been other casual employees who received ballot papers when they should not have.
PN773
Now - and he says, Mr Kelly, I put it rather, that the exclusion of that third vote was an error. In fact it was not, there was no error at all, that was part of the process which is set out in exhibit A2 in that initially Silver Chain provided to the auditors a full staff list and everybody on that staff list was sent a ballot. And then a second staff list was produced consisting of removing those people who had resigned and adding those people who had been employed since, again, all casuals being on that second staff list. The mail-out of the ballot papers was in accordance with the second staff list, so in other words, all casuals were mailed those ballot papers.
PN774
Anybody that was on Silver Chain's books who was an enrolled nurse was mailed the ballot papers in accordance with the second staff list and this appears in document A2. Then the process that was to be followed, which was the process that was followed, was that immediately on closing of the ballot, 22 January, Silver Chain produced a third staff list and that third staff list, again, removed any people who had resigned, added any people who had joined between the time of posting the ballots out and the count and also identified only those casuals who had worked during the voting period because the Act requires that the ballot must be of people who are employed at the time the agreement is made.
PN775
So the third staff list only identifies those casuals entitled to vote. But those people who were given ballots were given ballots in accordance with the second staff list. So it was quite proper for that particular employee who was a casual on Silver Chain's books to be given a ballot paper but the process was that if her name did not then appear on the third ballot - on the third staff list her vote would be excluded and that is exactly what occurred. The purpose of the third staff list was to identify casuals who were not entitled to vote and she was one of those and the system worked exactly as it should have.
[3.55pm]
PN776
And the process that Silver Chain undertook is entirely in accordance with the authorities that exist, and they are set out in the answers that we provided to the questions that you posed to us before today. and so we say it is not the case that there was an error in that process. We don't concede any error at all. In fact we say the system worked as it should have. That employee's vote was identified. In fact she was the only employee whose vote was excluded on that basis. So Mr Kelly says, oh, look, there might have been other people whose votes were excluded, but Mr Tyrrell was there. There was only that one employee whose vote was excluded and we say properly so.
PN777
So the suggestion that Mr Kelly was trying to raise, or create, that he was putting forward by way of bar table evidence that there was some irregularity with the ballot that would justify further investigation and require the orders that he has proposed, is we say not made out.
PN778
THE DEPUTY PRESIDENT: Okay. I will just go off the record for the moment for scheduling.
OFF THE RECORD
ADJOURNED UNTIL WEDNESDAY, 5 FEBRUARY 2003 [3.56pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #A1 LIST OF ANSWERS TO QUESTIONS PREPARED BY DEPUTY PRESIDENT PN82
EXHIBIT #A2 DOCUMENT IDENTIFYING EMPLOYEES ELIGIBLE TO VOTE AND BALLOTING EMPLOYEES PN88
EXHIBIT #A3 HOW TO VOTE INSTRUCTION SHEET PROVIDED TO EMPLOYEES PN90
EXHIBIT #A4 SILVER CHAIN'S CASUAL CONTRACT OF EMPLOYMENT PN94
EXHIBIT #A5 LETTER FROM AUDITORS ADVISING OF INITIAL COUNT PN105
EXHIBIT #A6 LETTER FROM AUDITORS RE TWO VOTES THAT WERE COUNTED LATER PN106
EXHIBIT #A7 NOTICE OF 20/12/2002 PN146
EXHIBIT #A8 INFORMATION SHEET PN146
EXHIBIT #A9 NOTICE TO STAFF OF 24/12/2002 PN146
EXHIBIT #A10 COPY OF HEALTHCARE INDUSTRY PRIVATE SUPERANNUATION AWARD PN185
EXHIBIT #A11 BUNDLE OF DOCUMENTS PN253
EXHIBIT #A12 REPORT BY MANN JUDD OF AUDIT CALCULATIONS PN276
EXHIBIT #A13 DOCUMENTS PROVIDED TO 13 NURSING HOME ENROLLED NURSES RE THEIR COMPARATIVE BENEFITS PN314
EXHIBIT #A14 UNAUDITED COMPARISONS RELATING TO COMMUNITY ENROLLED NURSES PN330
EXHIBIT #A15 SAMPLE EMPLOYMENT AGREEMENT PN343
EXHIBIT #A16 SUMMARY OF PROPOSED CHANGES PN343
EXHIBIT #A17 CALCULATION OF BACK PAY TO EMPLOYEES PN373
EXHIBIT #A18 SALARY SACRIFICING ARRANGEMENTS - PACKAGE OF DOCUMENTS PN377
EXHIBIT #A19 COMPARISON OF BENEFIT ACCRUING TO A SAMPLE EMPLOYEE PN378
EXHIBIT #R1 DOCUMENT PN451
EXHIBIT #R2 DOCUMENT PN451
EXHIBIT #R3 ANSWER AND COUNTER PROPOSAL PUT BY SILVER CHAIN IN PROCEEDINGS BEFORE COMMISSIONER SCOTT PN601
GLENN EDWARD TYRRELL, SWORN PN756
EXAMINATION-IN-CHIEF BY MR KELLY PN756
EXHIBIT #GT1 AFFIDAVIT OF GLENN EDWARD TYRRELL PN760
WITNESS WITHDREW PN761
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