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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:(08)8211 9077 Fax:(08)8231 6194
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL FO/N 1491
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT WILLIAMS
D2002/9
APPLICATION FOR ALTERATION OF
ELIGIBILITY RULES
Application under section 204(1) by
the Australian Nursing Federation
for addition of new subrule 5(2)(e)
ADELAIDE
10.20 AM, TUESDAY, 9 MARCH 2004
Continued from 29.10.03
PN379
MR E. WHITE: I seek leave to appear with MS SERPELL for the applicant, ANF.
PN380
MR J. NOLAN: I continue my appearance for the objector, the LHMU.
PN381
MR B. AUSTIN: I appear for the objector, Business SA.
PN382
THE SENIOR DEPUTY PRESIDENT: Leave is granted, Mr White.
PN383
MR WHITE: If your Honour pleases. Your Honour, there has been some discussion between respective counsel as to how we can start off today. I might deal with my bits and pieces first, if I may.
PN384
THE SENIOR DEPUTY PRESIDENT: Go ahead.
PN385
MR WHITE: We wrote a letter through your associate a week or two ago, your Honour, in relation to a number of matters, not the least of which was a request subject, of course, to the convenience of the Commission that the question of the compliance with the applicant's rule changing rule be determined at an early time. As we apprehend it, the objector, Business SA, does not raise an argument as to compliance or otherwise with the rule. The LHMU did raise an objection, although we now understand there was a formal objection not to be pursued but, rather, it being only put as highly - in terms of their argument - that the Commission needs to be satisfied that the rule change rule has been complied with.
PN386
It struck us, your Honour, that before we embark upon a potentially very long case that any technical matters which could be determinative should be, if possible, ruled on at an early time. So, your Honour, we raise that as the first issue which, if it could be dealt with, could be much to the parties' convenience. The second matter, your Honour, which I wish to raise is that my learned friend, Mr Austin, and I have had some discussion about the matters in the correspondence about Business SA objections, and we don't pursue or take that matter any further.
PN387
The third matter is we were served yesterday with a witness statement from Ms Lawson, a person who has been summonsed to attend, I think, on Thursday by the LHMU. Your Honour, we have given that witness statement to a number of our witnesses for their comment and instruction, and it may be - I will foreshadow it now - that we may not be able to have those instructions by Thursday. We can liaise with Mr Nolan in respect of that. There has been correspondence between the LHMU and the ANF in relation to the sufficiency of compliance with the LHMU summons directed to the documents held by the ANF.
PN388
Once again, Mr Nolan and I intend to discuss that matter between ourselves at lunch time to see if there can be some agreement reached in respect of those matters. The only other matters which I wish to raise at the moment are minor matters. We would like, if possible, an order for witnesses out but we understand that Mr Austin would require Mr Herbert from Business SA to remain in Court to - Mr Evans, I'm sorry - to provide instructions. Similarly, we would ask that Mr Bowner from the ANF remain. We have discussed that, at least, with Mr Nolan. Subject to that, your Honour, they are the preliminary matters which I wish to raise.
PN389
THE SENIOR DEPUTY PRESIDENT: Just on that last point, Mr Nolan, do you have someone you require to have present for the purpose of giving instructions?
PN390
MR NOLAN: Well, there's nobody who is a witness who, I think, we would require to be present so I don't think that should present a problem for us.
PN391
THE SENIOR DEPUTY PRESIDENT: Thank you, and Mr Austin, you have no problem with witnesses being ordered out of Court, other than Mr Evans and Mr Bowner?
PN392
MR AUSTIN: No, your Honour.
PN393
THE SENIOR DEPUTY PRESIDENT: Yes. Well, I will make that order that any witnesses in this matter, other than Mr Bowner and Mr Austin, are out of the Court prior to giving evidence.
PN394
MR WHITE: It is Mr Evans not Mr Austin.
PN395
THE SENIOR DEPUTY PRESIDENT: Mr Evans.
PN396
MR NOLAN: Mr Lawrence is here. He will be our first witness, and he will be the first in the witness-box. Is it really necessary to tell him to go outside for 10 minutes?
PN397
MR WHITE: No, of course not, no. There was one other matter - - -
PN398
THE SENIOR DEPUTY PRESIDENT: We will exclude Mr Lawrence from that. Yes, go ahead.
PN399
MR WHITE: There was one further matter and that is a matter that would save us jumping up and down a lot. There is, littered throughout the statements, material to which objection might be taken. Your Honour, we don't propose to take objection to every piece of material which we consider to be objectionable. That being said, however, the failure to take objections, we think it would be convenient to the Commission for it to be understood that - or it be without prejudice to our rights - that is, assertions about the law, assertions about the impact of union coverage, those sorts of matters, are hearsay quite often, your Honour.
PN400
Unless your Honour would be assisted by repeated objections to each of the statements, we don't propose to do it. There are some, what we would consider, egregious examples of objectionable material and we will, of course, be taking objections to that material as and when the witnesses are called.
PN401
THE SENIOR DEPUTY PRESIDENT: It was a matter I was going to raise myself, Mr White, because my experience of these matters is that, as I think you have just outlined, statements are often almost riddled with opinions of law and opinions as to the effect of matters, and it is really - insofar as it is either hearsay or opinion - it will be treated as such. I would hope that unless, as you describe it, they are particularly egregious examples, there won't be too many objections taken, and that the parties will rely on my capacity to distinguish between what is opinion and what is fact.
PN402
If it is opinion not supported by evidence, then hopefully I will get it right and if I don't, you will have me corrected in another place. We might save a considerable amount of time if people don't leap to their feet too often to object because otherwise we could be here beyond the Festival.
PN403
MR WHITE: If your Honour pleases. They are the preliminary matters.
PN404
THE SENIOR DEPUTY PRESIDENT: In relation to the question of technical compliance, Mr White, my practice generally is for you to proceed with what you seek to rely on in relation to that, and if there is any objection taken to it, then it should be then taken. I take it Mr Austin is not objecting. Mr Nolan's is a formal objection. Are you seeking to have me rule on this, are you?
PN405
MR WHITE: Well, if that is your normal practice, your Honour, then we would be content with that. We understand that Mr Nolan is not to lead any argument on it. We understand Business SA does not object and so the material that we would rely on is that statement of Ms ..... that was filed at the commencement of the proceedings with the application.
PN406
THE SENIOR DEPUTY PRESIDENT: Is there any challenge to that material from either objector?
PN407
MR AUSTIN: No, your Honour.
PN408
THE SENIOR DEPUTY PRESIDENT: We will proceed on the basis that you are relying on that material. I can say at the outset that I have not discovered any glaring error in that part of the material which would require me to further question what is there. Yes, Mr Nolan, you are going first, are you?
PN409
MR NOLAN: Yes, your Honour. It seemed appropriate for the LHMUs objection to be considered first. I've got a couple of, perhaps, housekeeping matters that might be sensibly commented upon before the batting opens. I can agree with Mr White about those subpoenaed documents and the issue arising from those. We will sort that out over the course of the day. I think it is also common ground that the proceeding proceeds under the old Act, rather than the new Act. That seems to be the effect of the transitional provisions in the registered organisations legislation and we have approached it on that basis.
PN410
We have also prepared a proposed order of witnesses, and I will hand up a document to you. I have given a copy of this to Mr White and to Mr Austin. Can I indicate to your Honour that we have had some brief discussions. As I say, Mr White and myself, we propose to move Ms Craig, who was set down in this provisional list to be dealt with on Wednesday to Thursday and, of course, as your Honour has already been told, Ms Lawson may be moved to a date a little later in the piece if it becomes necessary to do that, and we will have some discussions over the course of the day and inform your Honour about that.
PN411
It will be obvious from this list that there are two of the witnesses for whom we have provided witness statement who we now will not call so their witness statements, although provided, will not be marked and put into evidence. This provisional list would have the hearings this week running out on Thursday. Your Honour has set down all of this week, including Friday, as I understand it and all of next week. It may be possible for the Business SA people to be dealt with on Friday, but I think Mr Austin can speak for himself. I think there are some inquiries being made as to when those people can be made available.
PN412
If that is so, it may or may not become necessary to use any of next week, let alone all of next week. Anticipating that there would, at least, be - the objectors' evidence would run out, at the very latest, some time early next week, it would be our submission to your Honour that your Honour, notwithstanding that, should not hear from the ANF witnesses until the following bank of dates that have been set down. That would be a fortnight after next week, as I recall the dates. That would give us an opportunity, a further opportunity, to obtain instructions for cross-examination. Your Honour will be aware that we have had three false starts with this case.
PN413
In the circumstances, and given the resources already consumed by the case, it would be our strong submission to your Honour that the sensible course would be to allow that pause to be maintained between the hearing of the objectors' evidence and the hearing of the applicant's evidence to allow preparation, and also we have indicated to Mr White that it will certainly be our intention to see whether or not some agreement can be reached or accommodation that would see rather fewer than the proposed 18 witnesses to be called by the ANF being required to be cross-examined.
PN414
It seems to me to be, prima facie, an extraordinary exercise to have 18 or 19 people come over to be cross-examined when, if one looks at all the material, there's probably not a lot of dispute about the basic facts of the position at the end of the day. It is really a matter of what is invested in some of the facts that will be found. So for our part, we will make every effort conscientiously to try to limit the cross-examination and there may need to be some further discussion about that, but I simply foreshadow that to give you some idea of our thinking. Hopefully, we won't need all of the hearing days that have been set down for the purposes of hearing the evidence but we will keep your Honour informed about that.
PN415
THE SENIOR DEPUTY PRESIDENT: I follow what you are saying there. You are suggesting that we would only go for 3 days this week, that we would not sit at all next week or would we do the Business SA?
PN416
MR NOLAN: We would finish this block of hearings until we concluded with the Business SA people. It is just that it may be that some of their people could be dealt with on Friday and it wouldn't be necessary to hear them next week. It will be subject to their availability and so on, but whichever way the objectors' evidence is to be dealt with, that this block of hearing days be concerned with the objectors' evidence only, and that we go to the next block to hear the ANF evidence.
PN417
THE SENIOR DEPUTY PRESIDENT: By following that course of action, it may reduce the numbers of witnesses required - - -
PN418
MR NOLAN: Yes, that is right.
PN419
THE SENIOR DEPUTY PRESIDENT: - - - on the cross-examination.
PN420
MR NOLAN: That is right. It is hoped that will be the case, so we wouldn't need anything like the next block, the number of days set down in the next block.
PN421
THE SENIOR DEPUTY PRESIDENT: I will just check something else. Do I take it that the two witnesses you are not calling are Mark O'Connor and Christine Sarikis?
PN422
MR NOLAN: Yes, that is right, sir.
PN423
THE SENIOR DEPUTY PRESIDENT: Thank you. Does anyone wish to comment on that? Did you wish to make a comment on that, Mr White - - -
PN424
MR WHITE: Yes, your Honour.
PN425
THE SENIOR DEPUTY PRESIDENT: - - - in relation to programming?
PN426
MR WHITE: I do wish to say something about that. Your Honour, we do have a large number of witnesses, and whilst it would be fortunate if accommodation could be reached between the parties as to whether or not all of them are required for cross-examination, the witness-statements, by and large, have been provided for a substantial amount of time already. We are concerned that the dates have been set for this matter. We understand and are grateful to the Commission for the accommodation the Commission has given the ANF in relation to dates in the past.
PN427
These dates now have been set and we are very keen to utilise them and to make sure that the whole case is run and completed well within the allocated dates. So, your Honour, our position is that there are two blocks of 2 weeks, and they should be used as and when they arrive so that we just keep on running. Of course, the other thing about that is if there is to be a gap of, say, a week and a half, sometimes that it a doubled-edged sword in terms of being able to keep on top of what is being put to adequately record all the evidence. So our position is, your Honour, that it is best suited - the case is best suited to running through with the allocated dates.
PN428
THE SENIOR DEPUTY PRESIDENT: Mr Austin, do you wish to make any comment on that?
PN429
MR AUSTIN: Sir, I support Mr Nolan's position. Effectively, you have set aside two blocks of 9 days. I would have anticipated that the applicant's case could be completed in that last 9 days. It wouldn't lead to the matter running over. In relation to Business SA starting its witnesses on Thursday or Friday, we hadn't anticipated that they would be called so early but we will be making arrangements to see if they can be. We are reasonably confident that we would be able to get a start on them this week.
PN430
THE SENIOR DEPUTY PRESIDENT: I have to say that my preference is to run the matter through if we can. Sometimes it is not always possible if witnesses aren't available, but I think the point has been made that the statements have been available for some time to the parties, and the parties could have obtained instructions, such as they needed, to do their cross-examination. It may be of some assistance, Mr White, if later in the week you can provide your opponents with some suggested order of witnesses so that they can prepare accordingly - - -
PN431
MR WHITE: We intend to do that.
PN432
THE SENIOR DEPUTY PRESIDENT: - - - as best they can.
PN433
MR WHITE: We intend to do that, your Honour.
PN434
THE SENIOR DEPUTY PRESIDENT: Yes. We will see how we are going, but I like to propose that you keep me well advised of the possibilities of matters finishing earlier than we expect, particularly in relation to any week so that appropriate arrangements can be made. For example, if we are going to not sit Friday or we just can't sit Friday, then we will need to have a further discussion about that. At the moment, my plan of attack on this matter would be to forge ahead as best we can. Yes, Mr Nolan?
PN435
MR NOLAN: Forging ahead, can we indicate that your Honour has the benefit of the extensive written outlines and so on, and have had an opportunity to read the witness-statements that have been filed, I apprehend, so we didn't propose to make a lengthy opening regarding our objection, but can I make some points in respect of the objectors' case. Perhaps, it is worth emphasising a number of important distinctions between the situation that you will find in this case and with this objection, and the situation which you encountered with the HSUA matter which was the subject of a decision of yours some little while ago that later went on appeal.
PN436
We will be submitting to you that there's a very substantial difference between the two situations, such that to the extent that the ANF feels that it is fortified by that HSUA decision, we would say that that is a misconception because the position here, and you will have appreciated, is dramatically different to the situation in Victoria. The industrial interests of the PCAs in South Australia are regulated by the State system. You will have seen, and you will be taken to an important decision of the State Commission that was made making the most recent State award that regulates the employment of these folk, and also a decision of her Honour, Parsons J, which determined a demarcation dispute between the ANF in South Australia and the LHMU in the LHMUs favour.
PN437
We will be suggesting to your Honour that when one goes to turn one's attention to these which conveniently belong, and effectively represent tests in the statue, that one can only come to one conclusion, having regard to the recent history and the general history of State industrial regulation of PCAs and the decisions to which I've already made reference. That conclusion is that the ANF is really confronting a situation where there are insuperable obstacles in reality to the ANF effectively exercising industrial coverage, or any industrial coverage that might be given to it, were it to be successful in the application.
PN438
Of course, it would make no sense to grant the application in circumstances where the ANF could not, on any sensible or rational view, submit to the Commission that it could effectively represent the industrial interests of PCAs more so than already occurs thanks to the LHMU within the State system. The LHMU, of course, has a very significant level of membership within the class of employees concerned, and provides them with significant industrial support and it is well placed in those other features of industrial organisation that are necessary to service employees' industrial interests by reason of its respondency to the award and the initiative it has taken in that connection, and its organisational set-up to cater to the industrial interests of PCAs.
PN439
There will be, we say, notwithstanding what was said in the ANF material and the arguments in the HSUA case, there is still a significant divergence of industrial interests between nurses, the registered nurses, and the PCAs. The most important, I think, and we would say insuperable obstacle, the ANFs ambitions, really is contained within the State system of regulation and the fact that ANF, against this effect of industrial representation within South Australia, will be kept at bay, despite its ambitions, by the operation of the provisions of the Federal Act itself.
PN440
So in other words, section 111AAA will be an almost insuperable bar to any endeavours that might be made by the ANF to exercise award coverage over the PCAs in the light of the State award and the effectiveness that the LHMU has demonstrated in getting a new award, updating the award and doing all those things that are necessary and incidental to the maintenance of the award. The ANF is at a permanent and substantial disability, vis-a-vis the LHMU, with respect to exercising industrial influence. What is left to the ANF, effectively, is something that is within the gift of the employers so that the ANF, if it is to prevail, obtain coverage and then wants to do something about it, is prevented from doing that by way of award coverage for the reasons I've already said.
PN441
To the extent that it is able to achieve any coverage by means of Federal agreements, it is, of course, forced into a strategy that really is in, as I've indicated, the gift of the employers concerned and so, effectively, there will be an employer veto on the exercise of any practical industrial rights that the ANF could exercise, even if its wishes expressed in the application were fulfilled by the application being granted. So that can hardly be, in our submission, a basis upon which it can, in conscience, go to the rank and file PCAs and make promises to them that it can effectively represent their industrial interests because the whole basis upon which that exercise can only take place is one that, as I've indicated, is in the gift of the employers.
PN442
Of course, you will now be aware of the fact that the employers in this industry are hostile to the application and the employers, indeed, have supported the LHMUs objections and in that environment, the ANF will be hard pressed to translate any putative industrial interest into anything that has any effect or practical bearing in the industry. For the expression, "effectively represent", to have any real meaning or to have any traction at all within the industry, it has to mean something that is real, that has practical significance and is likely to occur as a matter of practical reality.
PN443
That cannot be a claim made by the ANF in this application because it is under the disabilities which I've described. In such circumstances, it is effectively out of the game, for all practical purposes. Combined with those fundamental objections, of course, there are the peripheral issues including the fact that there's not really been evidenced any substantial intrusion into the LHMUs area of industrial interest in this area by any ANF activity. It is unable to point to any great success on that score or any clamour, indeed, for it to represent PCAs. Indeed, some measure of its relatively perfunctory approach to this whole issue, of course, is to be taken from the successive adjournments that have occurred in this case.
PN444
The adjournments, as you know, have all been to do with counsel's convenience and have resulted in something like a year's delay in the case being heard. Now, that is hardly consistent with the picture of industrial demands and anxiety on the part of PCAs to have the ANF charge over the hill like the cavalry to rescue them from their industrial predicament. Rather, it suggests what the reality is, and that is that these folk are well and truly looked after, very adequately, by the LHMU. They have enjoyed the benefit of a new award, and there's no clamour at all for the ANF to come in and cover them. It is really, effectively, a body snatching exercise by the ANF now that the LHMU has shown that it is an area that can be industrially regulated in a satisfactory way.
PN445
It is an area where union interests can be enlivened. The ANF has come in and basically said: well, thank you very much. You have done all the hard work. We will have some of that. That can hardly form the basis to support an application of this kind. In addition to that, of course, the LHMU and not the ANF has really outlined a sensible course of industrial prescription in the tactic that it has undertaken of securing a firm and advantageous system of award covered for these employees, and the LHMU has particular qualities and talents in demonstrating the proper industrial approach taken to low-wage workers and their needs, and has been astute in its judgment using the State system to the advantage of these employees.
PN446
There's a real issue there about the futility of claims about enterprise bargaining in circumstances where there's a base that is set by funding decisions by governments, and where the employers have shown a general lack of appetite for enterprise bargaining, and where the State system can be utilised to the advantage of the employees concerned. Of course, that is an attitude, an approach to industrial relations, that is one that is countenanced by the Federal Act in its current manifestation because the Federal Act envisages decisions being made by employees, and employers for that matter, to stay within the State system if that is what best suits their industrial interests.
PN447
That is recognised, not just in the objects of the Federal Act, but, of course, embodied in emphatic terms in the provisions of section 111AAA, which acts as an almost absolute bar to the intrusion of the Federal award where a decision has been made on the ground that a State award is a more appropriate means of industrial regulation. All of these things, in our submission, combine to make this a case that resembles, only in the most superficial way, the HSUA case and all of which show that there are very stark and dramatic differences between the industrial regulation of PCAs in the State of Victoria and the condition in which your Honour found the industrial regulation of PCAs, and the observations you made about the state of the HSUA and the extent to which it had provided an effective industrial service in Victoria, and the position here.
PN448
It is against that background that the objection proceeds, and it is that background which really emphasises the important differences between Victoria and New South Wales. Your Honour, making those - - -
PN449
THE SENIOR DEPUTY PRESIDENT: Victoria and South Australia, was it?
PN450
MR NOLAN: Sorry, yes, South Australia. I keep forgetting which State I'm in. Your Honour will sympathise with that problem. Your Honour, those are really the only opening remarks that I wish to make. We rely on all of the written material that has been filed but I don't propose to read out any of that, so subject to your Honour's convenience, I propose we go straight into the evidence. I would call Mr Lawrence as the first witness for the objector.
PN451
THE SENIOR DEPUTY PRESIDENT: Before Mr Lawrence goes in the box, I think I should mark your outline and your reply.
PN452
MR NOLAN: Yes.
PN453
PN454
MR NOLAN: Mr Lawrence, could you again state your full name and address for the record, please?---Jeffery Paul Lawrence, (address supplied).
PN455
And for the purposes of your evidence in this proceeding, have witness statements been prepared by you and filed in the Commission?---Yes.
PN456
Do you have a copy of that witness statement with you in the witness-box?---I do.
PN457
Might that statement be marked, your Honour, and then what I propose to do is ask Mr Lawrence to just indicate to us where some parts of the witness statement need some updating because, as you will appreciate, this was made some time ago.
PN458
THE SENIOR DEPUTY PRESIDENT: Yes, there is 20 attachments to that, is that right?
PN459
MR NOLAN: Yes.
PN460
**** JEFFERY PAUL LAWRENCE XN MR NOLAN
PN461
MR NOLAN: Mr Lawrence, could you just indicate going through and referring to the paragraphs, paragraph by paragraph, where it is you wish to make some amendment to the statement?---Yes. The first aspect that isn't quite correct is paragraph 10 which says that all executive officers and officials of the national office are located in Sydney. That is not quite true any more. There are in fact two national officials who are located in Victoria. The national president has part-time national duties and she is located in Perth, and from time to time we have had a partial national officer located in Adelaide, but that is not the case at this stage. Then paragraph 11 and 12 contain a reference to a position of deputy national secretary, which did exist at the time this statement was made. The person who occupied that position, Jeff Carr, did resign and that position has actually been deleted from our rules and no longer exists and so, 11 and 12 need to be amended in that respect. Then in paragraph 39, which is on page 8, it refers there to an application to the South Australian Industrial Relations Commission with respect to wages of aged care workers and personal care workers and it indicates that at that stage, the union was awaiting the determination of that application. Subsequently, that has occurred and that is dealt with, as I recollect it, in some detail in the supplementary statement that has been lodged by the branch secretary, Mark Butler, but I just indicate that since this statement was made, that matter has in fact been determined. In paragraph 59, 63 and 66, there is reference to a national industrial officer, Sue Fenwick. Again, as I understand it, she has made statements in this matter, an initial statement and a supplementary statement and the supplementary statement indicates the position, which is that since this statement was made, she has actually transferred full time to the South Australian branch and she is now the assistant secretary of the South Australian branch and those particular roles that are referred to there in 59, 63 and 66, are now taken by Brett Rankine who is in the Commission today, who is now the relevant national industrial officer in the area. So in terms of updating, Mr Rankine should be referred to in terms of those roles. Finally, paragraph 99 makes reference to proceedings in the Industrial Relations Commission of South Australia with respect to demarcation and it indicates that those proceedings are ongoing and expected to be lengthy. Again, since this statement was actually made, those proceedings have concluded and a decision has been issued and again, that is dealt with, I think, in some detail in Mr Butler's supplementary statement. So to that extent, my statement at that stage is a little bit out of date. They are all the amendments, I think.
**** JEFFERY PAUL LAWRENCE XN MR NOLAN
PN462
Subject to those amendments, that is the evidence-in-chief then?---Yes.
PN463
Yes, that is the evidence-in-chief, your Honour.
PN464
MR WHITE: Your Honour, before you mark the statement, I do have objections to paragraphs 70 to 77. These paragraphs deal with a variety of processes undertaken by the ACTU. The objection we take is based on the question of relevance. The view of a third party, your Honour, is not relevant to the question that you have to decide as to whether or not there is another organisation to which these particular group of workers can more conveniently belong. The ACTU material in Mr Lawrence's affidavit goes to that organisation's view as to what might be an appropriate union to cover some workers in some industries at a particular point in time and that organisation's view as to unionism in general and how unions in Australia might work together.
PN465
None of those matters, your Honour, that is, the view of another organisation or another third party are relevant in the questions that you have to determine. So on that basis, we object.
PN466
THE SENIOR DEPUTY PRESIDENT: I'm not so sure I agree with you, Mr White, that it is totally irrelevant. At this stage, I think I shall allow the material in. It would be a matter for submission in due course as to what weight I might give it. Is there any other objection to the document?
PN467
MR WHITE: No, your Honour.
PN468
THE SENIOR DEPUTY PRESIDENT: Well, as I indicated before, I have marked it as ALHMWU3. Mr Austin, do you have any questions?
PN469
MR AUSTIN: No, I don't, sir.
**** JEFFERY PAUL LAWRENCE XN MR NOLAN
PN470
PN471
MR WHITE: Mr Lawrence, can I just clarify with you your organisation's coverage of personal care workers throughout Australia? It is the case, is it not, that the LHMU and the ANF have joint coverage of both personal care workers and enrolled nurses in Western Australia?---That is not my understanding, no.
PN472
The ANF and HSUA have joint coverage of personal care workers in New South Wales to the best of your knowledge?---Well, I am not an expert on the coverage of the respective organisations in New South Wales. I should have said with respect to Western Australia, my understanding, sorry, is that the ITEMU has exclusive coverage of enrolled nurses and that is reflected in litigation and agreements between ourselves and the ANF about 10 years ago, which are attached to my statement.
PN473
Yes, we will take some time with those agreements later. Your union and the HSUA have entered into an agreement to co-operate in relation to the industrial regulation and otherwise industrial interests of the PCAs, has it not?---Our agreement relates to the aged care industry in total, including PCAs.
PN474
Having entered that agreement, you would understand, would you not, that the HSUA has interest in aged care, particularly in relation to personal care workers throughout Australia?---Except where the LHMU has coverage, yes.
PN475
You understand then that HSUA has shared coverage for personal care workers with the ANF in Victoria?---I am aware that there was a decision at the Commission in that regard. As to where the membership position is at the moment, I am not aware of that.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN476
I intend to limit my questions and if you could limit your answers just to eligibility or coverage rather than actual membership in this regard?---I think membership is extremely important.
PN477
THE SENIOR DEPUTY PRESIDENT: Mr Lawrence, if you could just answer the questions you are asked. Your counsel, no doubt will bring forth any further information that is necessary?---Certainly, your Honour.
PN478
MR WHITE: So there is joint coverage for personal care workers between the ANF and the HSUA in Victoria to the best of your knowledge?---Yes. I am aware that there was a decision that dealt with that.
PN479
And that is also the case in New South Wales, is it not?---I am not an expert on the New South Wales situation. My understanding was that the HSU had very extensive coverage in that area but I am not an expert.
PN480
In Queensland, Mr Lawrence, the ANF, the LHMU and the AWU all have coverage in respect to PCAs?---That is not my understanding.
PN481
In Tasmania, the HSUA and ANF share coverage for PCAs?---My understanding was that in Tasmania, the HSU had coverage in that area and as I understood it also, they also covered a range of nurses in Tasmania.
PN482
The coverage that LHMU has in Queensland, Mr Lawrence, I take it that extends from an agreement that was entered into with the Queensland Nurses Union, a copy of that agreement being exhibited to your statement, is that right?---Well, it is longstanding coverage and as I understood that agreement, it codified really what was the position on the ground and had been recognised and accepted by both unions.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN483
The codification as to the - call it, the demarcation, is in your view an agreement or codification that is existing, that it was recorded in the agreement that is exhibit 12 to your statement and it is an agreement which you see as extending into the future, is that right?---Well, I certainly see our coverage of personal care attendants extending into the future. As to the exact and the various details of the agreement, you know, that may be another matter but the principles, I think, I would see continuing.
PN484
The exact details of the agreement you say are the codification of existing practise, or were the codification of existing practise in Queensland?---As I understand it. Bearing in mind that I am not - I can't profess to be an expert on all of the various issues in each branch of the organisation.
PN485
It is the case in Queensland, isn't it, that personal care attendants are workers who attend or provide care for persons who have been assessed as not requiring nursing care?---I'm sorry, are you reading from what particular document?
PN486
I direct your attention to paragraph 6A of exhibit 12 of your statement?---Yes, there is a definition of personal care work, if you like, I guess.
PN487
And personal care attendants for whom the LHMU have coverage are those persons who provide care to persons defined or described in paragraph 6A?---Well, this document was agreed to in 1997. You know, I am not aware as to whether, you know, the precise duties that are undertaken in Queensland are exactly as set out there but I suppose I have always had a general conception of personal care work as involving those sorts of things back to my close involvement in this area in the mid 1990s.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN488
Well, without going to your close involvement, Mr Lawrence, I will just direct your attention to this Queensland agreement which you have said codified the existing arrangement between the QNU, Queensland Nurses Union and the LHMU. Now, I am just asking you to confirm that the arrangement which was codified was that personal care workers who were eligible to join or belong to the LHMU, provided they provided care to persons who did not require nursing care or nursing supervision?---I don't see that being specifically stated there. As I understood this, it is a definition at that time as to the sort of work that was involved in personal care work and it also refers to a number of institutions, awards and so on and the work is as described there. I am just not going to agree to the last part of your question.
PN489
Well, it was you, Mr Lawrence, who said it codified the arrangement between the two unions. It is made even more clear in paragraph 6B, is it not, when assistants in nursing who were, as it were, demarked to the QNU are described as:
PN490
Is person who assists a nurse engaged as such with the implementation of a care plan as defined where nursing care is required but where in the professional judgment of the registered nurse, some tasks may be safe to delegate to an assistant in nursing receiving supervision from the registered nurse.
PN491
Do you see that?---Yes.
PN492
Right. Those workers were demarked to the QNU under that agreement and workers who provided care to persons who did not require nursing care were demarked to the LHMU, that is right, isn't it?---Well, the demarcation is in the introduction to paragraph 6 which says that:
PN493
The nursing staff, including assistants in nursing are covered by the QNU and non-nursing staff, including staff generally titled personal care workers are covered by the LHMU.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN494
And the personal care workers - taking a long time to get to this, the personal care workers are persons who provide care to persons who do not require nursing care?
PN495
MR NOLAN: Your Honour, I object to this. This document surely speaks for itself?
PN496
MR WHITE: Yes, well, I thought it did but if my friend is happy with that, then I won't pursue this question, except to this extent.
PN497
Those classification structures in Queensland, the like of which are contained in your exhibit 4 or attachment 4 at St Luke's?---Well, it is an example of a classification in one of the enterprise agreements in Queensland.
PN498
It is consistent with the demark agreement you reached with the QNU?---Look, I haven't closely looked at it but the general principles, I would assume, are consistent with it.
PN499
Yes. So where you say in your statement in paragraph 26 that the LHMU has long had coverage of personal care workers, it is not personal care workers you are talking there who perform nursing work or personal care workers who perform work in respect of patients who require nursing care necessarily, is it?---Well, it is personal care workers generally or non-nursing workers generally considered in an industrial context in Queensland.
PN500
You draw the distinction, do you, between personal care work and nursing work?---I don't particularly draw any technical distinctions like that. What I do know is that the ITMU had long coverage for these areas and work that had not been performed by registered nurses and that we've done the job industrially for those workers.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN501
Yes. If you could limit yourself to answering the question, Mr Lawrence. We are just trying to ascertain precisely what it is, or who it is you mean by personal care workers when you use that phrase in your statement?---Well, I think the difficulty with that is that if you look at the various awards and operations and legislation and so on around Australia, you will find, I would have thought, not a black and white answer to some of those things. There are a range of titles that are given to jobs. There are different qualifications to apply in different areas. So I just think you need to look at the context of - and history of a range of the awards and so on in the various States and Territories.
PN502
Is it your argument, or position then, that personal care workers might be workers who perform work in a nursing setting, perform nursing work, and personal care workers might not perform any nursing work at all?---Well - - -
PN503
MR NOLAN: Your Honour, I object to that question. If we are going to be involved in hair splitting about what the definition of nursing is, if Mr White is going to ask the question, he shouldn't bowl it up in this broad way. He ought to indicate to Mr Lawrence precisely what it is that he says was embraced by the term nursing work. I mean, this is an issue that perhaps bedevils this case and perhaps the HSU aid case, but your Honour is not going to be assisted by broad assertions being battered backwards and forth when your Honour really has to concentrate upon the situation in South Australia as you will find it.
PN504
THE SENIOR DEPUTY PRESIDENT: Mr White, what do you say?
PN505
MR WHITE: Well, what is nursing work is clearly now part of the case given the objections taken to the rule change, and particularly if your Honour has read from the most recent statement filed by Di Lawson.
PN506
THE SENIOR DEPUTY PRESIDENT: I can't say I've had to the opportunity to do that because it only reached my desk this morning.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN507
MR WHITE: Yes. So the question of what is nursing work or not is going to be a matter which is of some essential importance in this case. At the moment, your Honour, what I'm trying to understand clearly is what coverage the LHMU has. The agreement, it is said in Queensland, speaks for itself, that there was a distinction that I was exploring with Mr Lawrence about nursing work and non-nursing work for PCAs but I can put to him some definition of nursing work to see if he agrees with that as a proposition.
PN508
MR NOLAN: Well, the position is that the situation in South Australia is the work performed by PCAs however you like to characterise it, is described in the award and in the materials to do with - that led to making of the award in South Australia. These people are not covered by the Nursing Act in South Australia. So on one view you can say they don't perform any nursing duties at all because by definition they can't because they are not regulated by the Nursing Act. Now, that is probably just as unsatisfactory an approach to the question as the opposite approach. Can I suggest to your Honour that you won't be assisted by this almost, you know, philological obsession with the term "nursing care" pursued in this way.
PN509
Your Honour really needs to look at the award, look at the duties that are performed and make a decision with respect to the statutory tests that your Honour is obliged to apply. That one or other concessions wrought from one or other witnesses about the precise scope and leaps and bounds of the expression "nursing care" really takes the matter not a great deal further.
PN510
THE SENIOR DEPUTY PRESIDENT: Well, your witness is being cross-examined about statements made in material filed by your client. There is a statement there that the LHMU in relation to Queensland has coverage for personal care attendances.
PN511
MR NOLAN: That is right.
PN512
THE SENIOR DEPUTY PRESIDENT: As I understand it, all that Mr White is doing is trying to find out from this witness what he means by personal care attendants.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN513
MR NOLAN: The witness has said: look at the agreement, that defines the duties. Look at the other attachments which indicate the duties that are performed under enterprise agreements. Really, in our submission - - -
PN514
THE SENIOR DEPUTY PRESIDENT: Well, then you are happy to - - -
PN515
MR NOLAN: - - - we've really entered a more sort of philosophical realm. We are not concerned with what happens in Queensland. We have no gone to another level and we are dealing with - - -
PN516
THE SENIOR DEPUTY PRESIDENT: Well, the problem that I have, Mr Nolan, is the witness does not seem to be accepting that that is strictly the case. He seems to be slipping between what may be said in the documents and what may be the situation now. Now, I think Mr White is entitled to pursue that.
PN517
MR NOLAN: May it please, your Honour.
PN518
MR WHITE: The question, I think, was whether or not you draw a distinction, Mr Lawrence, between personal care workers performing nursing functions in a nursing environment and personal care workers who provide work in respect of persons who do not require nursing care?---The coverage in Queensland is as set out in the agreement and the various awards and so on that are there. Now, as I understand the distinction that is drawn in the agreement, it is between nursing work and non-nursing work. That is the distinction.
PN519
So the PCAs your union covers in Queensland are PCAs who do not perform nursing work?---Well, they are PCAs, full stop.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN520
Is your view of PCAs, a group of workers who do not perform nursing work?---Well, my view of PCAs is that it is a classification that is contained in a range of awards, industrial agreements, union coverage and so on and the exact content of what that means, I think, needs to be looked at in the context of the history in the different areas. But broadly there has been a distinction drawn between the coverage of the ANF being work performed by nurses and non-nursing work.
PN521
Do you say then - -
PN522
THE SENIOR DEPUTY PRESIDENT: Well, Mr Lawrence, that just begs the question, doesn't it? To say that the ANF covers the work done by nurses and someone else covers the work done by non-nurses that covers non-nursing work. Are you saying that nurses do nursing work and others do non-nursing work?---Well, your Honour, if we are talking about the Queensland agreement, which I understood what we were talking about, there is a distinction drawn between nursing staff who are covered - that is the term that is used in paragraph 6:
PN523
Nursing staff including assistants in nursing are covered by the QNU and non-nursing staff are covered by the LHMU.
PN524
That is all I am referring to.
PN525
Well, then you are saying, are you, that personal care workers are non-nursing staff?---That is what this Queensland agreement is saying.
PN526
In relation to that agreement?---Yes, that is all. I mean, that is all I'm saying.
PN527
MR WHITE: Can we move beyond the Queensland agreement, Mr Lawrence, and can I ask you this? Is that your view of PCAs generally? That is, they are a group of workers who do not perform nursing duties?---I think it is difficult to answer that in the way that it is put. The position simply is that there are a group of workers who are not covered by the ANF. That is as far - now - - -
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN528
Is that your definition of personal care workers?---My definition of personal care workers is, as I was trying to say before - my personal definition, as I was trying to say before - comes from my experience in dealing with this issue has got a particular background which was the home care service of New South Wales in the mid-1980s. Now, I'm just drawing a distinction between the way that I'm quite familiar with how personal care work developed there. I'm probably not so familiar with how it has developed in other areas and I just think you need to look at the context in which it is developed and I don't think it is appropriate to make such global statements.
PN529
Can I take you to Western Australia for a period? Your union has coverage there for enrolled nurses and is party to the Enrolled Nurses and Nursing Assistants Private Award 1978. If you have a look at paragraph 26 of your statement, Mr Lawrence?---Yes, I know that is right. I don't - yes.
PN530
That award defines nursing assistant, can I suggest:
PN531
...as meaning an employee other than one registered pursuant to the provisions of the Nurses Act 1968 or one that was in training for the purposes - - -
PN532
?---I'm sorry, which document are you reading from now?
PN533
I'm just reading for you another document that does not appear in your statement. You see, in paragraph 26 under: Western Australia, you refer to a number of awards which your union is party to?---Yes.
PN534
One of those is the Enrolled Nurses and Nursing Assistants Private Award 1978?---Yes.
PN535
If I can ask you and pose this question whether or not you are familiar with the definition of nursing assistant with that award?---Not in detail, no.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN536
I was just reading that to you now, Mr Lawrence?---Well, no I'm not. I'm not an expert on every award that we have I'm afraid.
PN537
Nursing assistant in that award means:
PN538
...an employee other than one registered pursuant to the provisions of the Nurses Act 1968 or one who was in training for the purpose of such registration whose substantial employment in terms of the purpose to be achieved by it is the provision of nursing care to persons.
PN539
You would agree with that as a proposition? I can show you the award if you wish?---It might be an idea because it is a bit hard to follow that when you are reading it.
PN540
Can I show Mr Lawrence then clause 6 of the award. If you have a look at the definition of nursing work which appears immediately underneath the definition of nurse assistant, Mr Lawrence?---Nursing care, I think is the term.
PN541
Nursing care?---Yes.
PN542
Can you pass that back to me? Nursing care is defined is it not as:
PN543
Giving assistance to a person who, because of disability, is unable to maintain his or her bodily needs without frequent assistance or carrying out tasks which are directly related to the maintenance of a person's bodily needs where that person because of disability, is unable to carry out those tasks for him or herself or assisting a person registered pursuant to the provisions of the Nurses Act 1968 to carry out the work described in paragraphs (a) or (b) hereof or other work directly related to a person's care. It does not include work where that work does not involve personal contact with a person.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN544
Now, that is a fair reading of that definition that I showed you?---Yes.
PN545
In Western Australia then, Mr Lawrence, personal care workers, in contra-distinction to those you cover in Queensland, perform nursing work, is that right?---Well, I think - the difficulty is that that is a definition that is one particular award. It refers to the legislation in Western Australia which is different to the legislation in South Australia and Queensland.
PN546
You say there is no clear definition of what nursing work - as far as the work that your members perform - it just changes from award to award, from State to State?---I think always you have to read union rules in coverage of the context of the history and the circumstances and you can't, I think, simply make the sort of broad assertions that you are seeking to make - - -
PN547
Well, I'm just - - -?--- - - - without looking at the context. That is all I'm saying.
PN548
Paragraph 26 of your statement says that:
PN549
The LHMU has had coverage for membership of aged care workers throughout Australia.
PN550
Thereafter sets out a number of awards to which the LHMU is a party?---Yes.
PN551
So I'm just looking at what those awards are and what those workers are that you cover?---Yes.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN552
In Queensland, it appears that the PCAs covered are persons who perform no work in respect of persons who need nursing care and in Western Australia it appears as if the persons there perform nursing work. That is a fair summary, isn't it?---I don't know that it is. Your first statement about Queensland, I don't know that - you are talking about work in respect of people who require nursing care. That is a distinction, I think - it is a different distinction to the sort of work. These awards are dealing with the sort of work that is done and I think if you look at all these various awards around Australia you will find that there are various definitions, various requirements. You can't just pick a - you know, a definition, I don't think, and say well, you know, this is personal care work or this is the sort of work that is performed by personal care aids in detail. You can in general but in detail, I think you need to look at the context, the legislation and so on, history.
PN553
Well, do you also say you can't look at work performed and say that it is or is not nursing work?---I find difficulty with that concept. I think what you can do is you can say that particular work is covered by the ANF.
PN554
We are not talking about coverage at the moment. We are talking about the work performed, Mr Lawrence?---Well, I'm just saying that I think that is a concept which does not have much meaning unless you look at the overall industrial context in some detail.
PN555
Well, can we just look at the work that these people perform or is it your position that what is nursing work or what is personal care work changes from State to State, industrial instrument to industrial instrument, depending upon particular history in particular States? Is that your evidence?---I think you do need to look at the precise industrial context. You want to use the term "nursing work". That is a term that isn't use by and large in union rules or awards.
PN556
So that is what I'm trying to understand - your position, Mr Lawrence?---You are constructing this artificial, you know, construct that you want me to answer. Now, that is why I have difficulty answering it.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN557
Well, I don't know if it is an artificial construct, Mr Lawrence, because nursing care - I've taken to you the definition in one of your awards in Western Australia. Now, what I'm trying to explore with you now is this. Whether or not nursing care, nursing work, personal care work, has any meaning outside of industrial instruments as far as you are concerned? Is there any - or is it all to be defined by the industrial instrument itself?---Well, from my point of view, I'm a union official, I'm not an expert on nursing. In the context that we're talking it really only has practical, I think, meaning - when you look at the question of union rules, union coverage, awards and enterprise agreements and legislation, that is the context that you need to look at.
PN558
So not the nature of the work itself?---Yes, it is the nature of the work but you need to relate it back to all of those factors that I was referring to to have any practical meaning.
PN559
But those factors only go back to actual coverage. They don't go back to the type of work performed, do they?---Well, yes, they do, in the context in which the work is performed and the history.
PN560
MR NOLAN: Well, your Honour, could I object again? The objection really is slightly different to the one that I posed before and that is we've now really reached a point where the questioning seems to be directed to eliciting what can only be regarded as an opinion from Mr Lawrence about what his general impression is about the notion of nursing work. Mr White was quick to indicate in his earlier remarks that he was alert to exclude mere opinion from the evidence.
PN561
How can this questioning and this line of questioning do any more than elicit the kind of answer that one could expect would range across a spectrum of responses from somebody saying that, you know, "Aunty Bertha's nursed Granny for the last 15 years of her life" to some highly technical academic definition about the nature of nursing care in a high tech intensive care public hospital unit. Whichever responses are forthcoming in our submission it can't really advance the cause here one iota because it really is, at the level at which this questioning is being pitched, an invitation really to offer a very vague and generalised opinion about the nature of nursing work and that can't assist your Honour.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN562
MR WHITE: Your Honour, I was really trying to explore what this witness meant by coverage of personal care workers in the aged care sector and in doing that I was going to some of the award to which reference had been made by this witness.
PN563
MR NOLAN: That is precisely the point. Those awards and what has been said in the witness statement, as I said earlier, they really speak for themselves. The awards are all there and they are set out and the situation admittedly does vary. There are nuances different from state to state and award to award. That is the position, that is the factual position that we find ourselves in and really expressions of opinion from Mr Lawrence can do very little to alter that factual situation which is presented by the documents.
PN564
THE SENIOR DEPUTY PRESIDENT: Mr White, isn't it accurate to say that if for example you take Western Australia - and I presume for the moment that first award mentioned there is a state award - - -
PN565
MR WHITE: Yes, your Honour.
PN566
THE SENIOR DEPUTY PRESIDENT: - - - that if I were wishing to determine whether or not that award covered particular work I would look at the definition and I would look at the work and see whether it fitted within the definition. Isn't that the appropriate approach? It does not matter whether it falls within the LHMWUs rules, the Q&S rules or the CFMEUs rules, does it, for that purpose?
PN567
MR WHITE: No, your Honour, I was probably trying to get two steps ahead of myself. There are objections littered throughout the statements filed on behalf of the LHMU that the work that the PCAs do is not nursing work and I'm trying to understand and elicit whether or not there's a generic approach to what a PCA is under the LHMUs coverage or - anyway I don't propose to pursue it, your Honour. Save that perhaps could I tender clause 6 of the Enrolled Nurses and Nursing Assistants Private Award (Western Australia).
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN568
MR WHITE: Your Honour, if we could have permission to uplift that at an appropriate time and make copies.
PN569
THE SENIOR DEPUTY PRESIDENT: Yes, and I won't staple it.
PN570
MR WHITE: In paragraph 31 ..... of your statement, Mr Lawrence, you talk about the LHMUs endeavours in enterprise bargaining and I assume that you assert that those are enterprise agreements which are relevant to the question of the terms and conditions of personal care workers?---Yes, in Queensland.
PN571
I direct you to paragraph 33?---Yes.
PN572
Similarly the enterprise agreements there are enterprise agreements which you assert are relevant to the regulation of the industrial terms of PCAs?---Amongst others, yes.
PN573
Once again, Mr Lawrence, it would be fair to say that the definitions of workers covered by those agreements range from skilled non-nursing work to persons who provide nursing care, and can I assist you in answering that question by handing to you the Brightwater Care Group Agreement to which you referred?---Thank you. Yes.
PN574
That definition in that certified agreement is consistent with the definition of nursing assistant and nursing care in the award, is it not?---It appears to be.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN575
Enterprise bargaining has been the subject of a number of resolutions of the ACT of which you are aware?---ACTU, yes.
PN576
Yes, ACTU, I'm sorry. ACTU Congress in 2003 reaffirmed that collective bargaining remains the primary source of its unions' achieved fair wages and employment conditions for members?---I think you are reading from part of a much broader wages policy, yes. The ACTU Congress also decided that enterprise bargaining would no longer be the major or sole source of getting wage increases other than for a national wage case.
PN577
It determined, did it not, that under the Workplace Relations Act enterprise bargaining was the primary means by which unions achieved wages and conditions for union members over and above the award safety net?---That's a fact of life, yes.
PN578
That is a fact of life?---Yes.
PN579
And is that a policy that has been adopted by the LHMU?---No, no.
PN580
Has the LHMU adopted any policy in relation to enterprise bargaining?---Our longstanding policy has been that we think that the endorsement of enterprise bargaining was an error and that we seek to return where we can to industry bargaining, and that's reflected now in ACTU policy and has been for the last three congresses. So whilst enterprise bargaining is a fact of life we recognise, and have been at the forefront of arguing, that in many industries enterprise bargaining is not appropriate, and so therefore we've been trying to pursue other means to get wage increases. Admittedly that's difficult under the current legislation.
PN581
And those means include an industry-wide bargaining rather than workplace by workplace bargaining?---Yes, or - - -
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN582
Is that known as pattern bargaining?---No, not necessarily. In a number of industries, including in aged care in South Australia for example, we've been pursuing an industry-wide campaign that in South Australia in the end ended up in an arbitrated decision that got significant increases. So it depends on the circumstances in the industry.
PN583
You'd agree that the system both in South Australia and nationally is that awards are now safety net awards providing minimum terms and conditions?---Increasingly that's the case, yes.
PN584
And that generally speaking workers who are members of unions who have been able to enter enterprise bargaining agreements with employers are better off both in terms of wages and conditions?---Well, there have been some trade-offs in conditions but I think that's broadly true. You can see that there's a gap opened up between those workers covered by enterprise agreements and those that have just received the award safety net. There's been an increasing gap over the last 10 years.
PN585
And ACTU Congress was concerned about the declining relevance of the award system?---Yes.
PN586
And that was one of the reasons why the congress was concerned, that is the gap between the minimum safety net and what might otherwise be a reasonable wage?---Yes, and also the fact that awards in many industries increasingly don't reflect what's actually being made to most people, so they are less relevant documents than they were say 10 years ago.
PN587
Your union is a union which covers a whole range of industries and I think paragraph 19 of your statement provides a snapshot perhaps of the industries in which you have coverage?---That's right. It's not called the Miscellaneous Workers Union for nothing.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN588
And the industries that are covered within that eligibility rule probably cover uncountable number of work sites even just within South Australia?---Well, there's many of them, yes.
PN589
I think you have said in your statement that the personal care workers in aged care are now a priority sector of the organisation effort?---Yes.
PN590
Did that involve the downgrading of any other industry from a non-priority sector?---No. In order to answer that I need to explain the process of change within our union which - - -
PN591
Perhaps if you just answer the question?---Yes.
PN592
Did it involve the downgrading of any industry sector from a non-priority sector?---It's not correct to put it that way. It involved the identification, an ongoing identification, of areas where there is potential for growth, and each branch has done that and does that from time to time and they can change over time as well.
PN593
So the main determinant for allocating priority to the aged care sector was that it was an under-organised sector and that there was potential for growth in membership in that sector?---Not that it was an under-organised area but there was clearly - there is clearly potential for growth just like there is potential for growth in a range of areas, and there was a range of industrial priorities that we could address, and that's the ongoing work of unions.
PN594
What level of membership do you think might be achieved in the aged care sector? Sorry, when would the LHMU remove resources from the aged care sector vis-a-vis the density of membership within that sector? That is, you have said that the potential for growth was the determinant. At what level of growth do you say the LHMU should achieve before the priority is removed from the aged care sector?---We don't have any precise numerical counter such
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
as that. I would see aged care and health as one of our key industries and I would imagine that very significant resources would continue to go into it irrespective of the levels of growth. Of course the sorts of resources and activities and structure might change and that's something that happens from time to time.
PN595
It has changed recently, hasn't it, because in South Australia in the very recent past increased resources have been put into the aged care sector?---Yes.
PN596
Is that a level of resources which you see continuing into the future in the aged care sector in South Australia?---I would see that there would be significant resources that would go into it. As to the exact structures and so on that's a matter for the branch to determine, although we do of course have an overall framework and process of change within the union, so there's been a range of resources that have gone into those growth strategies from the national council as well.
PN597
It is the case, is it not, and it is a mere economic reality that if extra resources are devoted into one area of organisation endeavour there are fewer resources to be allocated to others?---What we are doing in this process is actually creating additional resources by going to our members around Australia and including in South Australia and arguing the case that unionism needs additional resources in order to grow and that therefore there needs to be contribution rate increase. So what we've been doing is trying to create additional resources. We've also used some national reserves. This year we have a national organising fund of $1.5 million that has gone into activities based on contracts between the national council and branches which are designed to target growth. So it is really more a process of additional resources, perhaps changing in structures as to how we might deal with particular industries, but of course every union is faced with the need to look at priorities and develop plans for particular areas and that's all - that's what unions that work the ACTU strategy is all about.
PN598
The ACTU strategy included according to your paragraph 76 a strategy as to the relevant unions that cover particular industries?---That was at a particular time, yes. This whole question within the ACTU was evolved through the 1990s and I think some of the issues between ourselves and the ANF have been pretty good examples of how the approach has evolved.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN599
And one of the key determinants of the ACTU in terms of union coverage and organisation policy is the existing eligibility rule you say of respective unions?---That is one of the determinants.
PN600
You'd agree, Mr Lawrence, that the aged care sector in South Australia has now changed such that 70 to 80 per cent of persons employed as personal care attendants are required to have certificate 3 qualifications?---I'm not aware of that. I'm not across that level of detail.
PN601
Mr Butler gives that evidence. You are aware as well that the rules of the ANF provide for eligibility of persons who hold approved courses of study in the delivery of nursing care?---I'm aware in general terms of what the rules of the ANF say, yes.
PN602
And you would also be aware that the ANF Federal Council has approved certificate 3 in aged care as an approved course of study within the meaning of its rules?---I'm not aware of that.
PN603
Have you read the statement of Ms Thomas - I know there is a lot of statements in this case?---No, I haven't, I'm sorry.
PN604
MR NOLAN: Your Honour, I object in anticipation to this. What the ANF Federal Council views as appropriate for it to do in this sort of self-executing part of its rules to deem something to be within its rules is really a matter that is more appropriately addressed in the form of legal submissions about exactly how far such a rule can, if it is to be regarded as legitimate at all extend. That task is not one that is going to be assisted by Mr Lawrence being cross-examined about what the ANF Federal Council did to try to call in (a) that provision of its rules, in my submission.
PN605
THE SENIOR DEPUTY PRESIDENT: Well, so far he has only been asked whether he was aware.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN606
MR NOLAN: Yes.
PN607
THE SENIOR DEPUTY PRESIDENT: You are correct to say you are objecting in anticipation. If the matter goes no further what you have said is appropriate to be dealt with in submissions.
PN608
MR NOLAN: Yes.
PN609
MR WHITE: Well, your Honour, Mr Lawrence in his statement - - -
PN610
THE SENIOR DEPUTY PRESIDENT: I haven't upheld any objection, Mr White, at this stage.
PN611
MR WHITE: Yes.
PN612
THE SENIOR DEPUTY PRESIDENT: I am waiting to see where you go.
PN613
MR WHITE: All right.
PN614
Perhaps if Mr Lawrence could be shown - or attachment 3 to Ms Thomas' statement. I can hand that to him now. That is in Volume 1 of the ANF material?---Yes.
PN615
I take it, Mr Lawrence, that the purpose of putting in the material about the ACTU Congress was to support an argument by the LHMWU against the ANF on the basis that the LHMWU has coverage, the ANF does not and therefore it is inappropriate that the ANF should be assisted or allowed to change its rules, is that the purpose of putting the ACTU material in?---Not primarily. As I see it the major purpose of putting that material in is to outline to the Commission some of the history that has happened in South Australia in the 1990s, in particular, between the two organisations that I think are relevant to the determination of this matter.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN616
You would accept then that an organisation that had coverage of 70 to 80 per cent of the workers is an organisation to which the remaining 20 or 30 per cent might conveniently belong?
PN617
MR NOLAN: I object to that, your Honour, that is again something that calls for a conclusion that your Honour has to make on the basis of the facts as found. Not on the basis of opinion elicited from the witness.
PN618
MR WHITE: Yes, I withdraw the question, your Honour.
PN619
Mr Lawrence, in paragraph 79, you say that:
PN620
The application seeks to encroach upon the undisputed rights of the LHMWU.
PN621
Do you see that?---Yes.
PN622
If you accept that 70 to 80 per cent of PCA workers in South Australia can belong to the ANF, it is not - - -?---Well, I don't accept that.
PN623
You don't accept that?
PN624
MR NOLAN: Well, your Honour, I object to this question. Very little purpose is served in my submission by an exaggerated hypothesis being put to a witness and then the witness being in effect - - -
PN625
THE SENIOR DEPUTY PRESIDENT: What is the exaggeration?
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN626
MR NOLAN: Well, if you accept - - -
PN627
THE SENIOR DEPUTY PRESIDENT: I thought Mr White was relying on material that had been filed in this matter.
PN628
MR NOLAN: No, no, this question says: if you accept that 70 or 80 per cent of the employees are eligible to join the ANF then. Now, that involves the assumption in the question because it is contained within the question that that is a legitimate proposition to be entertained. Now, that can be of very little assistance to your Honour.
PN629
THE SENIOR DEPUTY PRESIDENT: Well, I'm going to allow the question, Mr Nolan. I appreciate the objection you are making, but I'm going to allow the question and, indeed, it has been answered, I think before you objected.
PN630
MR NOLAN: So he didn't accept the - - -
PN631
THE SENIOR DEPUTY PRESIDENT: Yes.
PN632
MR NOLAN: So technically, I suppose, he didn't answer it.
PN633
THE SENIOR DEPUTY PRESIDENT: Mr White, do you wish to pursue it?
PN634
MR WHITE: No, I don't, your Honour.
PN635
Can I take you to some further ACTU material, Mr Lawrence?---Yes.
PN636
In paragraph 70, 71 to 75, you talk about a number of ACTU documents concerning coverage - - -?---Yes.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN637
- - - relevant to a group of workers about - and in this case is about - I take it the purpose of including that in your statement is to rely, is it, on the ACTU view of the world as to the appropriate union to cover these workers?---Well, I think it is part of setting out the history between the two organisations in South Australia, that has involved the ACTU in trying to deal with a number of disputes, particularly relating to psychiatric nurses in the early 1990s, and I must say I think what is particularly outrageous about this application is the ANFs complete disregard of the LHMWUs cooperation in the early 1990s.
PN638
Yes?---In respect of psychiatric nurses.
PN639
Yes, thank you, Mr Lawrence. To some extent you call in aid the ACTU view of the world as to coverage to support that proposition, do you?---Well, both organisations are affiliates of the ACTU, both Federal Secretaries and Members of the ACTU Executive. Both organisations are supposed to apply ACTU policy in these matters.
PN640
THE SENIOR DEPUTY PRESIDENT: Well, was that a yes?---Yes.
PN641
MR WHITE: The document, attachment 8 to your statement, is the document titled: Overall Union Coverage In Issue By The ACTU?---Yes.
PN642
Introduction of that document, Mr Lawrence, describes it as a "Living Document"?---Yes.
PN643
This is the document you assert that ANF has failed to comply with?---I would say it is typical Bill Kelty terminology, I think, yes, that is right.
PN644
So, yes. Further, that:
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN645
It is a generalist view and does not contain precisely defined matters in every area.
PN646
Do you see that?---Yes.
PN647
You call in aid this document, Mr Lawrence, but can I take you to a number of parts of the document. On page 7 of that document?---Yes.
PN648
The number of the page will be at the bottom left-hand - on my document - sorry, well, page 37 - it has got two numbers?---Blasted computers.
PN649
Union number 7, Health Services Union of Australia on page 37 of the document?---Yes.
PN650
Do you see that?---Yes.
PN651
That deals with a number of industries in respect of the HSUA, including health?---Yes.
PN652
Health is:
PN653
Re non-nurses, non-pack grades of Victoria, New South Wales, Tasmania, ACT, and pack grades in those other States.
PN654
Do you see that?---Yes.
PN655
Industries to be further clarified - this might be part of the living document terminology:
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN656
The HSUA/ALHMWU have reached an agreement in health. This agreement must be negotiated to cover all health unions and nursing.
PN657
You would include in that the ANF, I assume, Mr Lawrence?---Yes, well, that - I don't know that that agreement is actually in evidence and probably it is ancient history. I think it was - - -
PN658
Well, I'm just taking you to this document at the moment?---Yes. But I'm just explaining - - -
PN659
The extent of nurses - - -?--- - - - it was an agreement that was done at the time that talked about an approach to the health industry.
PN660
Yes?---Yes.
PN661
But the agreement had to be negotiated to cover all health unions and nursing and I ask you whether or not that included the ANF?---Yes, well - - -
PN662
Of course?--- - - - it is an ACTU statement, I assume that is right - and other unions, I guess.
PN663
Yes:
PN664
The extent of nurses duties/personal care needs to be agreed.
PN665
Do you see that?---Yes. Yes.
PN666
So the ACTU, in relation at least to the HSUA and the ALHMWU, at that stage, reserved for later agreement the position of personal care workers?---Well, what that is doing is, it speaks for itself, but it is recording that it was an issue that was under disputation in some areas, I think.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN667
Yes, and if you turn over the following page, Australian Nursing Federation, is that the next page?---Yes.
PN668
It has got:
PN669
Health, nursing and the relevant industries.
PN670
It has got:
PN671
Nursing outside health. Industries to be further clarified.
PN672
Do you see that?---Yes.
PN673
Yes:
PN674
The ANF must reach agreement over health and coverage of nurses and assistants in certain areas with HSUA and ALHMWU. The extent of nursing/personal care duties needs to be agreed.
PN675
Do you see that?---Yes.
PN676
So at the time that the ACTU prepared this document there wasn't agreement, as is suggested in your statement, that there had been a divvy up, as it were, between the ALHMWU and the ANF which excluded personal care workers, that is the correct position, isn't it?---The ACTU documentation recorded principal and significant other and if you look at our coverage as well, which is the next one on 42 - - -
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN677
I think, Mr Lawrence, you set your coverage out in your statement?---Yes.
PN678
You omitted to put that the personal care workers, the subject of this case, as far as the ACTU was concerned had to be agreed between the relevant unions. You omitted that, didn't you?---Well, it is in the document which is attached to the statement.
PN679
Yes?---But it is still true to say that the document identified the principal unions and we were identified as a principal union in respect of health, in respect to non-nurses and non-pack grades in the Northern Territory, South Australia and Western Australia. I mean, if you look through the document, generally, you will see that there were a range of, not just in terms of this industry, there are a range of matters that are identified that were the subject of disputation, or discussion or contested claims, or whatever and they are identified.
PN680
So from the early 1990s, it has been a live issue as between this union - your union, the ANF, as well as the HSUA, the personal care workers coverage needed to be further developed and further agreed?---No, it wasn't a live issue until the ANF started its body snatching campaign and the recruitment campaign in South Australia and lodged this application.
PN681
You see, Mr Lawrence, that is not what the ACTU document says, is it?
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN682
MR NOLAN: Your Honour, the ACTU document talks about - it speaks for itself once again - and it talks about certain areas being included in that qualification. Now, you know, what is sought to be wrung out of that, I suppose, remains to be seen but our objection would be that it is quite inappropriate to try to transform that into something that it isn't by trying to wrench concessions from the witness out of the witness-box when he has gone to the trouble of providing the documents in support of what he said in his statement.
PN683
MR WHITE: I understood this witness had agreed that he was using that material to draw an adverse inference against the ANF in terms of what he has now just said is "body snatching". I have just taken the witness to parts of that agreement - parts of that document where it is made abundantly clear that the coverage of this group of workers back then was yet to be the subject of agreement.
PN684
MR NOLAN: Well, it is not made clear that it is this group of workers at all that is the subject of the express words in the ACTU document. There is nothing to suggest that any particular group of workers with that degree of specificity was to be identified.
PN685
THE SENIOR DEPUTY PRESIDENT: I think the question is quite legitimate, Mr Nolan. Proceed, Mr White.
PN686
MR WHITE: I beg your pardon, I didn't hear your Honour.
PN687
THE SENIOR DEPUTY PRESIDENT: Yes, you go ahead.
PN688
MR WHITE: Yes.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN689
Mr Lawrence, I put the proposition to you that back at the time this document was made there were relevant groups of workers, nurses and assistants, personal care needs, nurses duties, personal care needs, all those matters were yet to be agreed between the relevant unions, being the HSUA, the LHMWU and the ANF?---There wasn't. I am not suggesting that there was agreement with respect to this. In fact, at the time, there was extremely heated litigation between the LHMWU and the ANF in respect of psychiatric nurses in South Australia and enrolled nurses in Western Australia. There was actually positive disagreement about a number of the aspects. What this is just showing is where the ACTU process got up to and I think what you need to look at is, you know, what was the membership position and what was the award coverage at the time and the simple fact is that in South Australia in this area it had not been an issue until the ANF made this activity - undertook this activity.
PN690
Well, I'm just talking about the - - -?---At that time there was no actual attempt by the ANF to recruit people, in fact - - -
PN691
Well, Mr Lawrence, we are just talking about the ACTU document, are we?
PN692
MR NOLAN: Well, your Honour, the question goes further than just the ACTU document. The suggestion has been made to the witness about the relevance of the ACTU document and the words contained in it to the position in South Australia. Now, if the cross-examiner is really going to strike a blow here to make the point, well, it ought to be put to the witness: if there was an issue with respect to personal care attendants in South Australia at that time, it was overlooked by the ACTU document. Now, we are many steps short of that, but that is really the point that needs to be confronted fairly and squarely if there is any point at all to this line of cross-examination.
PN693
THE SENIOR DEPUTY PRESIDENT: I think, Mr Nolan, we will leave Mr White to continue his cross-examination without instruction.
PN694
MR WHITE: Mr Lawrence, the process envisaged in that document was also that unions, where there was disagreement, were to meet and discuss, is that right?---Yes.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN695
There have in fact in this matter in relation to personal care workers in South Australia, been meetings brokered by the ACTU?---Yes.
PN696
Between yourself acting on behalf of the LHMWU and Ms Ayliffe, the National Secretary of the - Federal Secretary of the ANF?---Yes.
PN697
It was your view, was it not, after that meeting that further talk was pointless or irrelevant?---Well, I think there had been a couple of meetings but, in essence, the answer is, yes.
PN698
Yes. The couple of meetings involved also meetings between the respective State officials?---No, I think there had been separate meetings involving the State officials. I mean, there has been proceedings in the South Australian Commission so there were meetings with respect to that that I wasn't personally involved in.
PN699
In the context of the ACTU document by which it was said that agreement needed to be made in respect of the extent of nurses duties and personal care needs, despite the parties endeavours, no agreement has been able to have been made?---Yes.
PN700
Part of the ACTU document also looked at the question of union membership, actual membership, in determining whether or not a union should have rights to cover a particular group of workers, is that right?---Yes.
PN701
The actual membership is referred by you in paragraph 8, in which you say:
PN702
There is high levels of membership penetration in South Australia.
PN703
?---Yes.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN704
Thanks. Now, I just want to explore with you what those "high levels of membership penetration" are, and in doing that can I take you to some statistics from the Bureau of Census and Statistics?---Can I just say I don't have the membership numbers here in the witness-box with me.
PN705
I just want to ask you generally, Mr Lawrence, about what you mean by:
PN706
High levels of membership penetration.
PN707
You are familiar with, are you - or are you familiar with Australian Bureau of Statistics concerning employee earnings benefits of Trade Union membership?---I am in general terms, yes.
PN708
Perhaps I can give you that and one for his Honour. These I think were up-to-date as at August 2002, I think, on the top of the document, Mr Lawrence?---Yes.
PN709
You will see in the top two rows that:
PN710
Percentage of union membership for males was 24.5 per cent.
PN711
?---Yes.
PN712
And:
PN713
For females 21.5 per cent.
PN714
?---Yes.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN715
In South Australia the membership - union membership is 26.4 per cent?---Yes.
PN716
If we go down under industry and third from the bottom of that column: Health and Community Services?---Yes.
PN717
You will see the average is 30.7 per cent?---Yes.
PN718
In Private Sector, the average is 17.7 per cent?---Yes.
PN719
With an overall average at the bottom of 23.1 per cent of average union penetration?---Yes. Yes, I'm painfully aware of those figures, yes.
PN720
Yes. Is that what you mean by:
PN721
A high level of membership penetration.
PN722
When you talk of that in paragraph 80?---Well, in the context of the industry in South Australia what I'm saying in that paragraph is that our membership is relatively high. I'm not saying that there isn't more to be done - - -
PN723
Sorry, in the context of - I'm sorry?---In the context of the circumstances of the industry in South Australia, relatively, we have a high level of membership penetration. I'm not saying that there isn't significant potential to be achieved.
PN724
I'm just asking you - I'm exploring with you what it is you mean by:
PN725
A high level of membership penetration.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN726
Bearing in mind, these are the sort of national average figures?---Yes, well, that is right, they are not South Australian figures and they are not broken up within the particular category.
PN727
Right. Well, within - well, South Australia has figures of 26.4 per cent there as a State figure?---Generally, yes.
PN728
Yes, but it isn't broken up into categories?---No.
PN729
If it was broken up into categories, would age care have a - in order to be described as a high membership penetration, be lower than the State average of 26.4 per cent, do you think?---Well, I think, you'd have to do that - have to do that analysis.
PN730
I'm asking you what you meant, Mr Lawrence, in paragraph 80. I asked you what you meant by, "high level of membership penetration." You said it depended upon the industry involved. I'm asking, bearing in - I'm asking, comparing the national figures and State figures, whether or not a membership penetration in the aged care section in South Australia of up to 26.4 per cent, which is an average in South Australia, would be what you call as a, "high level of membership penetration"?---That term was - it's a general term. It's not saying it's majority membership. I didn't have the precise figures in front of me there. There is considerable membership and there is, I think, as I recollect it, attached to Mr Butler's statement or revised statement.
PN731
Yes. I'm asking you what you meant when you wrote that, Mr Lawrence?---I'm saying it's a - it was a general description.
PN732
Would 20 per cent be high membership penetration?---I wasn't thinking about any percentages at all.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN733
You rely on it however, in opposition to the ANF position in this case, don't you?---Yes. I maintain the statement. The figures - the membership figures will, no doubt, be quoted and, no doubt, be analysed, just as the ANFs will be.
PN734
Yes. So where you say, "high level of membership penetration," you don't put any percentage on that?---No.
PN735
Can I take you now perhaps, to some of the agreements which appear in the paragraphs 81 and following of your statement?---Yes.
PN736
I'm sorry. Your Honour, can I tender the extract which I just handed to Mr Lawrence being an extract from the Australian Bureau of Statistics titled: Employee earnings, benefits, and trade union membership August 2002?
PN737
PN738
MR WHITE: Is the purpose for putting the demarcation agreement so called into your evidence, Mr Lawrence, to draw adverse inferences against the ANF in its pursuit of this case?---When you say the "demarcation" do you - saying agreement or agreements? I'm - - -
PN739
The agreements?---Well, that's - - -
PN740
See the heading above paragraph 81 is: Demarcation Agreements?---It's intended to set out the history between the two organisations. Yes.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN741
Yes. All right. Well, perhaps we could go to the first agreement - - -?---Given that the ANF doesn't seem to have - adhere to agreements, I suppose, you can draw an adverse inference.
PN742
Yes. Is that the purpose that you put them in?---Well, it's part of the history.
PN743
Yes?---The Commission is entitled to know the history.
PN744
Yes. All right. The first agreement between the LHMU and a nursing union attached to this statement is in paragraph 83, and we've been to that agreement before. That's with the QNU?---Yes.
PN745
We spent some time on that before. The effect of that agreement is to demark to the Queensland Nurses Union assistance in nursing who provide care where the recipient of that care is in need of nursing care. We don't need to go there again. The next agreement thereafter, Mr Lawrence, under attachment 13 is in relation to a number of matters, including Northern Territory, prisons and independent contractors?---Yes. This was at an application by the LHMU to change its rules.
PN746
Thank you. The ANF managed to strike an agreement with the LHMU to enable that to occur?---Yes.
PN747
THE SENIOR DEPUTY PRESIDENT: Can I just interrupt you there? Mr Nolan, my file does not contain that document. Perhaps, in due course, you could supply me with a copy. It is something I hadn't asked before, but it had completely slipped my mind. It is just a blank in between the pages.
PN748
MR NOLAN: All right. We will attend to that, your Honour.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN749
THE SENIOR DEPUTY PRESIDENT: Are you going to the document in particular in detail?
PN750
MR WHITE: Yes, yes.
PN751
THE SENIOR DEPUTY PRESIDENT: Well, I should have it in front of me then. Sorry. I thought you were moving onto something else. Yes. Thank you.
PN752
MR WHITE: If you look at the last paragraph numbered - sorry. The last sentence in paragraph 1 of that agreement, Mr Lawrence, refers to another agreement between the ANF and the LHMU in D No 25009 of 1989 which terms constitute part of the agreement. Do you see that?---Yes.
PN753
That is not attached to this agreement that you have exhibited to your statement, is it?---No, but I think it is the next document, isn't it - number 14?
PN754
No. I don't believe that it is?---No.
PN755
We will come to that at a later time. The next document, Mr Lawrence, is an agreement between the LHMU and the South Australian registered ANF. Yes?---Yes.
PN756
It is fair to say, Mr Lawrence, that in D No 25009 of 1989 was an application by the LHMU to amend its eligibility rules in a number of respects, but in particular to include within its rule personal care workers in South Australia?---Amongst other things. Yes.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN757
Yes. That is the first time, isn't it, that personal care workers were included in the LHMU rule, at least in respect of South Australia?---Those words - that was an application where it was a tidying up exercise. There was existing coverage in a whole range of areas and there was insertion of a number of words that more specifically define some of the coverage. Home care aids, for example, had already been a matter that had been determined by Commissioner Cox in litigation to be encompassed in our existing coverage of domestic work, but this was a rule change, as is often done, to try and make more clear, I guess, or expand upon existing coverage.
PN758
Thank you. The LHMU struck agreement with the ANF SA branch in that matter, among other things, (a) to allow the rule change as set out in paragraph 6 to proceed on the conditions that were set out in subsequent paragraphs. Can I draw your attention to paragraph 10, Mr Lawrence?
PN759
The applicant undertakes, will not seek to rely on any proceedings upon the withdrawal by the objector of its objection in this matter in the terms of this agreement to have found any inference adverse to the industrial rights and coverage of the objector, and acknowledges that the objectors withdrawal of objection is without prejudice to the objectors present, and future, industrial interests.
PN760
Do you see that?---Yes.
PN761
That was done at a time, was it not, when the question of coverage of PCAs was alive between the parties?---Not in South Australia it wasn't.
PN762
You undertook, Mr Lawrence - you signed this document on behalf of the LHMU that you would not rely on this agreement adverse to the inference - adverse to the interests of the ANF South Australian branch?---Well, that's what the document says.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN763
Yes. You would agree that if there was an equivalent clause in an agreement between the LHMU and the ANF you would not be able to rely on that agreement, in this case, adverse to the interests of the ANF?---I think, we are entitled to put before the Commission the various agreements, litigation and history that there's been between the two organisations. I don't think that you can understand or appreciate the situation on the ground without looking at what has happened in the past.
PN764
Yes. Well, there was, in fact, an agreement between the LHMU and the ANF Federally registered organisation in that proceeding, wasn't there?---Yes.
PN765
Yes. It doesn't form part of your witness statement, does it?---Well, it would be in exactly the same terms as the South Australian one.
PN766
Could I show you, Mr Lawrence, this document? That is the agreement between the LHMU and the ANF in D5009 of 1989. Yes?---Yes.
PN767
It was agreed, amongst other things, that the ANF would withdraw its objection to the rule change which was, at least in part, in respect of personal care aids?---Yes.
PN768
You are aware, or you remember, Mr Lawrence, or can I remind you, that the ANF objection included an objection based on the grounds of conveniently belong?---I can't remember that, but I assume it would have done. Yes.
PN769
Yes. Would you prefer or would you like to look at the objection?---No. I mean, I'm sure it would have. I don't need to.
PN770
You'd accept that the ANF asserted in its objection to the LHMU rule change that it had coverage of persons who were sought to be covered by the rule change?---Well, I think everybody does when they object to applications and certainly, they did at the time as the act then was.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN771
The withdrawal of the ANF to this rule change enabled you, or enabled the LHMU to have coverage in express terms for personal care attendants in South Australia. That is correct, isn't it?---Yes. The only qualification I put on that is that we already had coverage. I mean, it shouldn't be thought that this was an application that somehow or other gave us new coverage or existing awards, agreements.
PN772
The condition of the withdrawal by the ANF of its objection was that the LHMU understood and acknowledged that it would not rely on the ANF withdrawal adverse to any interests in the future of the ANF?
PN773
MR NOLAN: I object to that, your Honour. That is not what the document says. It says, as I read it:
PN774
Will not seek to rely on any proceedings upon the withdrawal of the objector or subjection in this matter in the terms of this agreement to found any inference adverse to the industrial rights and coverage of the objector and acknowledges the objectors withdrawal.
PN775
Now, that speaks to the industrial rights and coverage of the objector at the time the agreement was executed. It does not speculate about what is to occur in the future and, of course, there's - of course, in the questioning, there's a heavy implication that this was the ANF giving up something that it already had. Now, that is a big if. All it does is speak to the existing industrial rights and coverage of the objector.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN776
Indeed, one could go further and say that the provision ought to be construed even more narrowly because the expression, "industrial rights and coverage" ought to be construed as a composite expression, which not just acknowledges the rules coverage, or the rules eligibility position of the ANF in the abstract but talks about the actual coverage of the ANF at the time the objection was signed. Now, either the document can be put in and much can be made of the scope of clause 14 or not. Trying to suggest to the witness that it means more than it actually says is, once again, an exercise, in our submission, that can't assist your Honour.
PN777
MR WHITE: Your Honour, this is an agreement by which the LHMU made certain undertakings in proceedings which provided coverage in terms for the group of workers who are now subject to the proceeding now before the Commission.
PN778
THE SENIOR DEPUTY PRESIDENT: Well, I think, you can put the question that you put. It will be a matter for argument in due course as to what that actually means in the effect of it.
PN779
MR WHITE: Yes. All right. Perhaps, I will put another question, your Honour. The LHMU, in arriving at the settlement with the ANF in this proceeding, Mr Lawrence, accepted that the withdrawal of the objection was without prejudice to the ANFs present and future industrial interests?---No. Not at all. I - my understanding of clause - - -
PN780
Can I direct you to clause 14 and - - -?---Yes. I was just going to comment on that.
PN781
- - - in particular - - -?---My understanding of clause 14 and clause 10 in the previous document is that the intent of that clause, which is a pretty standard clause, is to say that in some future proceeding you won't - you won't say that somehow or other the objector's position was prejudice because they settled effectively. It does not mean that somehow or other the agreement was to be treated secretly, or it wasn't to be used, or wouldn't be quoted in the future. It's an agreement between two organisations and I would expect the ANF to hold us to the agreement, just as I expect to hold the ANF to the agreement.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN782
Yes. Well, the LHMU undertook that it would not seek to rely on the withdrawal of the objection?---Yes, yes. Not to rely on the agreement, though. We didn't say that we wouldn't rely on the agreement. It's a different thing. We do rely on the agreement.
PN783
That agreement provides, does it not, and acknowledged by the LHMU that it is without prejudice to the ANF future industrial interests?---Well, any organisation has got a right to make application from time to time under the Act, but similarly organisations are bound in terms of the Act, and morally in terms of their industrial reputation by the agreements that they make.
PN784
Yes, yes. You say that you don't rely on the coverage obtained by the LHMU by the withdrawal of that objection to found an adverse inference?
PN785
MR NOLAN: Well, your Honour, I restate the objection, but refine it by referring again to the actual words of clause 14.
PN786
It is the objectors withdrawal of the objections, without prejudice, the objectors present in future industrial interest.
PN787
So it would be a different matter if we were saying: you withdrew the objection and we can rely on the withdrawal of the objection as a plank of our industrial assault upon you somewhere else, or in some area of your interest.
PN788
THE SENIOR DEPUTY PRESIDENT: Well, whether or not that is right, Mr Nolan, I think Mr White is entitled to put the question in the manner in which he has put it. What might lead from that is a different matter - or might flow from that, I should say.
PN789
MR WHITE: Mr Lawrence?---Sorry. Could you repeat the question?
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN790
The proposition I was putting to you was this: that the LHMU obtained coverage personal care workers in South Australia in part on the withdrawal of objection by the ANF by the LHMU undertaking to the ANF that it would not, that is the ANF withdrawal of objection, prejudice the ANFs future industrial interests. Now, that is the position, isn't it?---No. What I say to that is: 1, we already have coverage. 2, the statement in paragraph 14 is about relying on the withdrawal of the objection, not about relying or quoting the agreement in other proceedings, and 3, what it shows is that in 1993 the ANF consented to us having specific coverage stated in our rules of personal care - aged care. I can't say that the ANF was actually contesting this coverage. In fact, it's evidence that it was vacating the field at that time.
PN791
Yes. Can I mark that, your Honour?
PN792
PN793
THE SENIOR DEPUTY PRESIDENT: Are you moving on from that document?
PN794
MR WHITE: Yes, your Honour.
PN795
THE SENIOR DEPUTY PRESIDENT: Just out of interest, Mr Lawrence, can you tell me why the documents are headed: Consolidated - Agreement in part?---No.
PN796
Yes. Go ahead, Mr White?
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN797
MR WHITE: I might be able to offer a suggestion about that, your Honour?---Only that Mr Gardner, who is in Court, I think, had some role in drafting it.
PN798
MR NOLAN: Or calling.
PN799
THE SENIOR DEPUTY PRESIDENT: I don't want to open up additional areas. There are enough as there are.
PN800
MR WHITE: Yes. Mr Lawrence, you've said, in a number of answers to questions that words to the effect that you considered the ANF to have breached agreements with the LHMU?---Yes.
PN801
Are there any agreements which fit that description which are not exhibited to your statement?---Not that I'm aware of.
PN802
In respect of each of the agreements that you have exhibited to your statement, Mr Lawrence, can you now please point to the clause which you say the ANF has breached?---Well, I suppose the first one is the one that we were already talking about previously which was number - in tab 14 and the companion document which I've just forgotten what exhibit it was just marked - the one that was just tendered, the Federal one.
PN803
THE SENIOR DEPUTY PRESIDENT: ANF3, the most recent one?---Yes.
PN804
MR WHITE: Just in relation to tab 14 first?---Yes.
PN805
What clause of that agreement, do you say, the ANF has breached?---Clause 6.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN806
Well, what obligation is imposed on the ANF by clause 6?---Clause 6 and clause 11, I think, in that.
PN807
What obligation is imposed by clause on the ANF?---Well, the ANF agreed that certain coverage would go in there and if you read it with clause 11 which says it won't disturb the status quo. The ANF is now seeking clearly to do that. So I'm saying in an industrial context I regard that as a breach of an agreement.
PN808
Well, you understand, Mr Lawrence, that this application by the ANF does not seek to, in any way, reduce or affect the LHMU coverage of personal care workers?---That is a - with respect, Mr White, that is a technical distinction that you choose to draw. The reality is that the ANF have been out there in the field seeking to recruit personal care workers, seeking to create division, seeking to undermine the activities of the LHMU in organising - - -
PN809
Mr Lawrence, could you limit yourself to the particulars of the agreements which you assert the ANF has acted in breach of?---Well, I'm talking about the general question in dispute on the field which is really, I think, expect what the Commission needs to be really concerned about as well.
PN810
It may do that but are you now saying that the breach by the ANF that you complain of isn't of the agreements but of conduct?---Well, no. The agreement that I was referring to in 1993 talked about particular coverage. It said that the ANF would - there is a re-affirmation of the status quo in the agreement.
PN811
Well, paragraph 11 you refer to there, is it?---Yes.
PN812
Paragraph 11 is an undertaking on the part of the LHMU, isn't it?---Well, it is a general - it is an agreement between the two unions about the status quo. I mean that is the effect of these agreements.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN813
Well, paragraph 11 says: the applicant undertakes etcetera. There is no obligation on the ANF is there?---Not in terms of the specific words but, as I said, as these agreements are - they are agreements between two organisations about coverage at a point in time.
PN814
You know when you entered this agreement that the ANF were asserting coverage of the persons the subject of your rule change?---Well, they couldn't have been.
PN815
Well, we went through that before, Mr Lawrence?---They withdrew their objection.
PN816
Yes. They settled their objection. Their objection included grounds that the persons - - -?---Well, presumably now if the same application had have been made the ANF would have strenuously contested it but they didn't then. That is all I'm saying.
PN817
You know, Mr Lawrence, that at the time this agreement was entered into between the two organisations, that the ANF asserted coverage of the relevant group of workers?---No, I don't know that.
PN818
Well, the objection filed by the ANF, Mr Lawrence, I think you've earlier agreed, contained a conveniently but long objection?---Yes, well objections do, yes.
PN819
Yes. You realise or you would understand and accept that at the time this agreement was made, the ANF were asserting an entitlement to cover these groups of workers?---Well, they didn't pursue that entitlement or that assertion, that is the point.
PN820
That is not the question I asked, is it? At the time that this agreement was made, the ANF asserted right to cover workers the subject of your rule at change application?---Well, they may have asserted it technically initially but they didn't pursue it.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN821
It was against the assertion by the ANF and in the context of that objection that this agreement was made obviously?---Well, yes.
PN822
Apart from paragraph 6 and paragraph 11 of exhibit 14, what other agreement do you say or what clause of any other agreement do you say that the ANF have acted in breach of?---Well, it is in - the major one is in clause 16 which is the agreement about psychiatric nurses and I don't - - -
PN823
Sorry, tab?---That is tab 16.
PN824
Tab 16. Yes. What clause in that agreement has the ANF acted in breach of?---I don't know that I can point to - well, it is not so much a specific clause. I would argue that the whole of that agreement and the way that it was conducted and the result of it - the actions of the ANF now are a major breach of industrial good faith.
PN825
Yes. You say that regardless of the ACTU telling the unions that they should go away and agree - - -?---No, no. This agreement contains A4 - or attaches to it an ACTU executive decision which the ITMU went along with. The effect of it was that substantial membership that we had who were psychiatric nurses in South Australia, transferred to the ANF. It was done within the ACTU process and I say that it was an indication of the LHMUs good faith in dealing with a difficult situation and the ANF have showed absolutely no regard for the sort of principles that we applied in that dispute.
PN826
Well, Mr Lawrence, I think you agreed with me that you had suggested that the ANF was in breach of agreement and I'm just exploring with you what agreement you say that they have acted in breach of. Now, what clause of that agreement do you say that the ANF has reneged on?---Just give me a moment to see if I can - it is not my principal assertion that there is a particular clause. It is the overall agreement and the circumstances that occurred at that time.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN827
Well, I can put to you that there is no clause that you will find there, Mr Lawrence, that the ANF has acted in breach of?---That is not my assertion.
PN828
Can I direct your attention to exhibit 17?---Yes.
PN829
This is an agreement reached between the LHMU and its West Australian State registered counterpart and the ANF and interstate registered counterpart. Yes?---Yes.
PN830
Clause 4 of that agreement provides:
PN831
It is agreed by the parties the terms of this agreement shall be without prejudice to the industrial interests of all parties and shall not be used in any proceedings in any Tribunal except in the case of a continuing breach of its terms.
PN832
Do you see that?---Yes.
PN833
Why are you relying on this agreement in these proceedings?---We are not specifically relying on it. It is put in as part of the overall history and context between the two organisations.
PN834
You don't say you are attempting to use this agreement in these proceedings?---It is part of the history between the two unions. It is a matter of public record that there has been extensive disputation between the two unions particularly in Western Australia and South Australia and I thought it was appropriate that this material be before the Commission but it is a Western Australian matter obviously.
PN835
Yes. Paragraph 97 of your statement, you describe what you call:
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN836
Significant industrial disputation between the LHMU and the ANU.
PN837
Do you see that?---Not yet but I will.
PN838
Para 97, Mr Lawrence?---Yes.
PN839
Would it surprise you - I withdraw that. From where did you get the information that you led you to be able to make that statement?---From our report from our South Australian branch.
PN840
Can you describe or tell the Commission what you mean by industrial disputation?---Well, there have been - as a result of some of the activities that I've been referring to before as far as I'm aware there have been issues of attempted recruitment. There have been issues at particular work sites with particular members and just - - -
PN841
Well, can you be more specific about issues with the work sites?---No, I can't.
PN842
All right. What else do you mean by industrial disputation?---Well, I would have to rely on the general reports I've had from the South Australian branch and you will need to get the details from them.
PN843
So other than unidentified issues at work sites, what do you mean in that then, Mr Lawrence - in that paragraph is that recruitment by the ANF constitutes industrial disputation?---No, no. It is referring to disagreement, issues, general confusion. I don't know that it is suggested there that there has been long stoppages of work but it is a general term that talks about some of the issues that have been created at various workplaces.
PN844
Would it surprise you that in the minutes of the State branch there is no reference to industrial disputation of any type?
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN845
THE SENIOR DEPUTY PRESIDENT: The State branch of?
PN846
MR WHITE: The LHMU?---I don't know whether that is right or wrong. Even if it was correct it does not mean very much.
PN847
Yes. I asked you questions earlier, Mr Lawrence, concerning the eligibility rule of the ANF, do you recall that?---Yes.
PN848
Do you recall your counsel objected to me asking questions about the rule change - the eligibility rule?---Yes.
PN849
Right. Do you recall or do you know - we will go to it again - that the eligibility rule of the ANF renders eligible for membership, persons who have achieved certificate 3 or studying to achieve certificate 3 in aged care?
PN850
MR NOLAN: Well, I object to that your Honour, because it is bearing on a completely wrong premise. There is nothing in the ANF rule that says persons who have achieved - - -
PN851
MR WHITE: I can go two steps, your Honour.
PN852
THE SENIOR DEPUTY PRESIDENT: Yes.
PN853
MR WHITE: I agree with you. Do you agree that the ANF rule provides:
PN854
...eligibility for persons who have undertaken approved courses of State.
PN855
You would accept that?---Look, I have a general knowledge of the ANF rule. I don't have it in front of me now. I have enough difficulty coming to terms with out rules let alone another organisation.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN856
MR NOLAN: Perhaps he ought to be shown it if he is going to be asked questions about it.
PN857
MR WHITE: Yes, I'm going to show them. It is in the - Ms Thomas' supplementary statement of rules of the organisation and perhaps I can show Mr Lawrence that? So if I can direct you to rule 5, Mr Lawrence, do you see that?---Yes.
PN858
Rule 5(1)(b) renders eligible for membership:
PN859
Persons engaged in the nursing industry who can produce evidence of training to the satisfaction of the council.
PN860
Do you see that?---I see that, yes.
PN861
Can I show you exhibit 3 or attachment 3 to Ms Thomas's statement?---Yes.
PN862
That is the first statement, your Honour. Do you see that the Federal council, it is recorded, has approved within the meaning of rule 5(1)(b) has approved a number of courses including:
PN863
Certificates II, III, IV, diploma and advanced diploma in community services aged care work.
PN864
?---I can see that memo, yes.
PN865
Yes. On the basis that the council has approved such courses within the meaning of that rule, Mr Lawrence, you would accept, would you not, that persons who have undertaken those qualifications be eligible for membership?
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN866
MR NOLAN: I object to that your Honour. That implies a legal conclusion that involves a construction of the rule and, of course, the preparatory words of that rule are:
PN867
...persons engaged in the nursing industry - - -
PN868
MR WHITE: This is something to which objection is also taken.
PN869
MR NOLAN: Now, that can suggest a variety of answers and ultimately that is a legal conclusion and no accession to or disagreement with a proposition put to a lay a witness in the witness-box can assist the Commission at all in that regard.
PN870
THE SENIOR DEPUTY PRESIDENT: Mr Lawrence, assuming these people are engaged in the nursing industry, what is the answer to your question?---Well, I can read the document, your Honour. It indicates that there is a range of certificates that are referred to there and I - if the premise that you're saying is right - if it is, I assume it is one of these qualifications that is referred to. In the letter, I'm sorry.
PN871
MR WHITE: I asked you before and I will ask you again, Mr Lawrence. You are aware that evidence from your State branch, Mr Butler, is that 70 to 80 per cent of the personal care attendants now in South Australia have certificate III in aged care?---I can't recall that evidence actually.
PN872
All right. Yes. I'm exploring with you, Mr Lawrence, the basis upon which you made the assertion in paragraph 98 of your statement and can I take you to paragraph - - -?---Can I give this back now?
PN873
Yes?---98, yes.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN874
You state in paragraph 98 that the ANF had falsely asserted in a coverage of personal care attendants. Now, that statement is false, is it not, Mr Lawrence?---Not as far as I'm aware. Clearly, the ANF, as far as I'm aware subject to the exchange we've just had, does not have existing award coverage, it does not have - - -
PN875
We are not talking about award coverage?---No, but covers - the term covers just does not mean constitutional coverage. It includes that.
PN876
MR NOLAN: Your Honour, I object to this questioning because if we are going to talk about assumptions and premises and implications and things that are understood, when one looks at the document itself and looks at the second page: opportunities for advancement - it purports to cover people who are working towards the attainment of a level III certificate in the community services aged care.
PN877
THE SENIOR DEPUTY PRESIDENT: Mr Nolan, that is not what the question is about, the question is whether they cover - the question goes to the assertion made by your witness.
PN878
MR NOLAN: Yes.
PN879
THE SENIOR DEPUTY PRESIDENT: I think Mr White is entirely - certainly entitled to ask.
PN880
MR NOLAN: The assertion is made by reference to this document.
PN881
THE SENIOR DEPUTY PRESIDENT: An assertion which says - falsely states that the ANF covers "personal care attendants".
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN882
MR NOLAN: That is right.
PN883
THE SENIOR DEPUTY PRESIDENT: Whatever the document might assert otherwise, the statement contained in your witness's statement goes to that question, dose not it?
PN884
MR NOLAN: By reference to - - -
PN885
THE SENIOR DEPUTY PRESIDENT: Why isn't Mr White allowed to ask: what is the basis for that statement?
PN886
MR NOLAN: By reference to - - -
PN887
THE SENIOR DEPUTY PRESIDENT: Well, you don't have to give the witness the answer.
PN888
MR NOLAN: I don't want to give him the answer, he has been around long enough to - - -
PN889
THE SENIOR DEPUTY PRESIDENT: Well, you don't give him the answer then. The witness can answer the question as to: what is the basis for the assertion that is made?
PN890
MR NOLAN: The document speaks for itself, again.
PN891
THE SENIOR DEPUTY PRESIDENT: Mr Lawrence, you can answer the question that you have been asked?---Yes, your Honour. I'm just a bit confused as to which document we are referring to.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN892
MR WHITE: Well, perhaps if we go to your paragraph 97, Mr Lawrence?---Yes. Yes.
PN893
Yes:
PN894
After the significant industrial disputation...
PN895
Which meant some recruitment, I think, you proceed to say a number of things, including that:
PN896
...the ANF had promoted a PCA claim.
PN897
?---Yes.
PN898
And falsely represented, I assume, two workers:
PN899
And falsely represent workers they do not have the requisite rules to represent.
PN900
?---Yes.
PN901
In paragraph 98, you continue the assertion that:
PN902
The ANF had falsely stated it had coverage of PCAs.
PN903
?---Yes.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN904
I'm exploring with you now the basis upon which, you say, ANF falsely represented they had appropriate coverage?---Well, it is referring to two documents which are in attachment 20, but I can go to that in a second if I can.
PN905
Can we just first of all consider the rules because the rules are what you talk about in paragraph 97, are they not?---Yes, yes. Well, I was saying before, was it in 98, I think it is a broader assertion than just simply rules.
PN906
Well, can we limit to 97?---97 talks about rules, yes.
PN907
All right. On what basis do you say that the ANF does not have the right to represent PCAs in accordance with its rules?---Based upon my knowledge and understanding of the ANF rules and what they contain.
PN908
Was this statement you made in the absence of knowledge of courses which ANF Federal Council had approved for the purpose of rule 5(1)(b)?---It was based upon my understanding, the understanding of our officers, of the ANFs rules on the face of them.
PN909
So your officers, Mr Lawrence, also made those assertions in the absence of knowledge of the Federal Council resolution approving the relevant Certificate courses?---Well, I don't know whether there was that knowledge or not I mean, presumably, the National Council does a whole range of things that are not - I mean, it is an extremely strange rule, I must say, and I suppose that happened from time to time. Whether in fact it is valid or not it would be a matter determined.
PN910
You didn't turn your mind to that at all, when you made this statement?---I was basing it on the ANFs rules and my understanding of their general coverage.
PN911
Just in general, can we turn to attachment 20, Mr Lawrence?---Yes.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN912
This was a claim you say was put out by the ANF in relation to personal care workers?---Yes.
PN913
Yes. Paragraph 1, the claim:
PN914
We seek comparable wage outcomes with public sector employees.
PN915
Do you see that?---Yes.
PN916
You would agree with that as a laudable aim?---On the face of it I'm not really familiar enough with the precise position in South Australia to, you know, comment as to whether it is adequate or not. It is a very general claim I must say, whereas, our organisation has been pursuing specific case - - -
PN917
Can you just limit yourself to this claim for the moment. In relation to comparable wage outcomes, perhaps I will take you to the first substantial paragraph numbered 1?---Yes.
PN918
THE SENIOR DEPUTY PRESIDENT: Are you going to be some time with the document?
PN919
MR WHITE: Yes, your Honour.
PN920
THE SENIOR DEPUTY PRESIDENT: It is probably appropriate we adjourn. We will adjourn until 2.15.
LUNCHEON ADJOURNMENT [1.00pm]
RESUMED [2.25pm]
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN921
MR NOLAN: You should note, your Honour, that Mr Lawrence has been complaining bitterly about the discomfort of that particular witness-box. Your Honour might be able to make some arrangements to make it more comfortable for the next occasion.
PN922
THE SENIOR DEPUTY PRESIDENT: I have got enough problems with accommodation in Melbourne. Yes, Mr White.
PN923
MR WHITE: Thank you, your Honour.
PN924
Mr Lawrence, in paragraph 39, it is one of the paragraphs you corrected before your statement was tendered. It is in relation to the case run by your union in South Australia, I think commonly called "The re-classification case"?---Yes.
PN925
That case was ultimately successful in that Commission?---Yes.
PN926
The award was varied in such a way as to give recognition for the increased work performed by PCAs, is that correct?---Well, it was substantially varied in accordance with our claim, as I understand it, in a number of respects.
PN927
Yes. It is fair to say, is it not, that the fundamental or basic argument put by your union to the State Commission is that the work performed by the PCAs in age care had both increased - had increased both in volume and complexity?---Well, it was a work value claim, as I understand it, so that would have been part of the argument that was put, as well as a range of other, you know, changes in the conditions of work and the circumstances in work, training and so on.
PN928
Yes. The evidence before the Commission in that case, the State Commission, concentrated on the period since 1996, that is correct, isn't it?---Well, I'm not familiar with the case in that level of detail.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN929
I understand. Could I show you a document please and I can hand it to your Honour. This document, your Honour, is an outline of submissions by the LHMWU to the South Australian Industrial Relations Commission in what I will call the "re-classification case". Mr Lawrence, could I direct your attention to paragraph 11?---Yes.
PN930
In part it says:
PN931
The evidence has been concentrated on the period since 1996.
PN932
You don't have anything to disavow that proposition?---No, well, that is what it says.
PN933
Yes.
PN934
THE SENIOR DEPUTY PRESIDENT: What paragraph was that?
PN935
MR WHITE: Paragraph 11, your Honour.
PN936
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN937
MR WHITE: Paragraph 12 is a very broad overview of the basis upon which the case was put?---Yes.
PN938
The implementation of the Age Care Act, that came in, in late 1997, did it not?---I don't know that but I - - -
PN939
Well, take it from me, Mr Lawrence?---Yes, I accept that.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN940
The introduction of Certificate 3 is a de facto requirement:
PN941
An increase in the dependency levels and complexity of care needs of residents. Holistic care, increased documentation and the like.
PN942
Mr Lawrence, can I direct your attention to paragraph 19.3. In paragraph 19 your union submits that the principles - and they are the Aged Care Principles - made pursuant to the provisions of the Age Care Act:
PN943
The principles show a changed environment to the delivery of age care.
PN944
Do you see that?---Yes.
PN945
In paragraph 19.3, says as follows that:
PN946
From the quality of care principles the range of responsibilities of care staff can be seen. These responsibilities include the provision of basic care needs, however, they also include the provision of emotional support, the involvement of care staff in treatments and procedures, on instruction from health professionals, the involvement of care staff in the provision of recreational therapy, rehabilitation support. The provision of support for residents with cognitive impairment, the involvement of care staff and the provision of therapy services. The majority of these functions beyond the provision of basic care needs would have been the province of registered or enrolled nurses until relatively recently.
PN947
?---Yes, I see that, yes.
PN948
You now don't disavow your union from that position?---Well, it is a statement that was, it would appear, put in relation to the case, yes.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN949
THE SENIOR DEPUTY PRESIDENT: Yes, you do disavow them, or, no, you don't?---I'm sorry, no.
PN950
Your answer is, you don't disavow them, is that what you say?---Yes.
PN951
Thank you?---Now that I'm clear.
PN952
Well, I'm the one who has to be clear, I think.
PN953
MR WHITE: In 1996, Mr Lawrence - and I chose that date because that is the date from which the evidence was mainly led - you would agree that registered and enrolled nurses were covered by the ANF, both by award and as a matter of rules?---Yes, and still are, yes.
PN954
Yes. Prior to 1996, in particular in 1993, that was also the case, was it not?---Yes.
PN955
The position between the organisations in 1993 was that persons who performed were described as enrolled or registered nurse work, belonged to the ANF and were covered by ANF awards?---Yes.
PN956
Can I take you to paragraph 15, Mr Lawrence, of exhibit A3, I believe your Honour. It is the agreement in D5009 of 1989?---ANF3.
PN957
ANF3, I'm sorry, your Honour?---Sorry, what paragraph?
PN958
Paragraph 15. By paragraph 15 the LHMWU undertake that in relation to matters, the subject of the application, including I interpolate, Mr Lawrence, the coverage of personal care attendants in South Australia, that it did not intend to disturb the status quo as to coverage of employees, whether by award membership, or otherwise, which currently exists between it and the objector?---Yes.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN959
Do you now renege on behalf of your union on that undertaking?---No.
PN960
Mr Lawrence, you rely in part in your objection to the ANF rule change on the rules obtained by the LHMWU in that proceeding, do you not?---Well, it is rule coverage and it is award coverage and membership that we have had for a long, long time and, clearly, this application by the ANF is seeking to disturb that. In contrast, in the case before the Industrial Relations Commission that you are referring to, the wages case, there were work value changes that were identified and it is entirely appropriate for a union to identify those and seek to bring them in aid to a wages claim. I don't see the two things are inconsistent.
PN961
Mr Lawrence, I was talking about the undertaking your union gave that it did not intend to disturb the status quo as to coverage of employees, whether by award membership or otherwise, which currently existed, that is at 1993?---Yes.
PN962
I think you have agreed with me that in 1993, persons who did what PCAs now do and what used to be the province of registered and enrolled nurses, were eligible for membership of the ANF covered by ANF awards. You agreed with that proposition, did you?---I don't think I quite agreed with the proposition put in that way. I thought what you asked me was whether registered and enrolled nurses were covered by the ANF at that time.
PN963
Yes?---And I agreed with that.
PN964
It is apparent from the submissions your union put to the State Industrial Relations Commission that the work of PCAs in South Australia has changed significantly over the relatively recent past from 1996 onwards?---Well, the South Australian Commission identified that there had been work value changes, significant work value changes, yes.
**** JEFFERY PAUL LAWRENCE XXN MR WHITE
PN965
Your union submitted that in part those work changes arose from the fact that personal care attendants now performed registered or enrolled nurse work?---No, I don't think it quite says that, does it? It said - the submission was that there had been a range of work value changes and that some of the duties had - were now taken up by personal care attendants - I mean, that is not an unusual thing with technological change, or what happens in industry, it is a usual sort of argument that would be run in a work value case, or part of the argument.
PN966
If the workers - in the absence of change of that type the workers who performed the work of PCAs now would still be registered and enrolled nurses, would they not?---No, not necessarily.
PN967
I have got no further questions, your Honour.
PN968
THE SENIOR DEPUTY PRESIDENT: Any re-examination?
PN969
MR WHITE: I'm sorry, was that marked, your Honour, can I seek to tender - - -
PN970
PN971
PN972
MR NOLAN: Mr Lawrence, when did it first become apparent to you that the ANF was making a claim over PCAs and South Australia, do you recall?---I can't recall the exact date but it was some time - some time in 2001, I think.
**** JEFFERY PAUL LAWRENCE RXN MR NOLAN
PN973
So was any suggestion ever made to you in 1993 or 1994 when that agreement that has become ANF3 was made that the ANF had a claim over personal care attendants in age care in South Australia?---No.
PN974
There is no further questions, may it please your Honour. May Mr Lawrence be excused.
PN975
PN976
MR NOLAN: The next witness is Ms Fenwick, your Honour.
PN977
THE SENIOR DEPUTY PRESIDENT: Perhaps you can assist us by telling us what book number her statement appears in.
PN978
MR NOLAN: What book number?
PN979
MR WHITE: The first statement is in book 4 and the second statement is in book 6, apparently.
PN980
PN981
MR NOLAN: Mr Fenwick, for the record, could you just repeat your full name and address please?---Susan Denise Fenwick, (address supplied).
PN982
What is your current position with the LHMWU?---I'm a lead organiser and assistant branch secretary.
PN983
Of the South Australian branch?---South Australian branch.
PN984
For the purposes of your evidence of this matter you have prepared two witness statements, is that correct?---Yes.
PN985
Do you have those with you in the witness-box?---I do.
PN986
The first of those witness statements is simply headed up: Witness Statement, and that was the one that you prepared originally, is that right?---Yes.
PN987
Is it convenient to mark these, your Honour?
PN988
THE SENIOR DEPUTY PRESIDENT: Yes. I will mark the first of the statements as ALHMWU4 because, as I understand it, that has one attachment. The second statement is ALHMWU5 and that has some 20, as I understand it, attachments.
EXHIBIT #ALHMWU4 FIRST STATEMENT OF SUSAN DENISE FENWICK
EXHIBIT #ALHMWU5 SECOND STATEMENT OF SUSAN DENISE FENWICK TOGETHER WITH 20 ATTACHMENTS
**** SUSAN DENISE FENWICK XN MR NOLAN
PN989
MR NOLAN: Now, in relation to that second statement, Ms Fenwick, I understand that you wanted to make some minor corrections and some additional comments. Can you do that just going through the paragraphs in order that you wish to make some comment upon please?---Yes. At point 7, currently the team is still made up in that way, but the branch is currently in the process of employing six new project organisers, several of whom will be assigned to aged care team to organise for growth.
PN990
Right?---At 15, in the last sentence:
PN991
Since January 2003, aged care has grown its membership by 494 net members.
PN992
As of yesterday, 8 March. At 39, it is more a matter of style and grammar, I don't know if you want me to correct that.
PN993
Yes, please?---It should read - the first sentence is fine. The second sentence should read:
PN994
At the Modbury Residential Aged Care Centre owned by Amity Group Pty Limited, it was reported to me that LHMU members were subject to constant intimidation and harassment.
PN995
THE SENIOR DEPUTY PRESIDENT: Can I just ask you, when you say that it is a matter of grammar, do you mean the report was given to you at Modbury or the report was about Modbury?---The report was about Modbury.
PN996
Thank you?---Then paragraph 42 relates to the issues that I have raised at 38. So probably that should go higher.
**** SUSAN DENISE FENWICK XN MR NOLAN
PN997
MR NOLAN: Well, you just make that comment. If it was thought to be unclear that you were referring to paragraph 38?---At 44:
PN998
The LHMU office has now made claims on behalf of more than 100 individual work sites which covers about 67 per cent of our current membership. A further 27 claims are close to completion which will mean that about 80 per cent of our members are covered by claims.
PN999
At 48:
PN1000
Some examples of our activity include a section 15 injunction against six major employers are relating to the application of the increments in the award. This covers 21 different aged care sites and about 370 members.
PN1001
And we have one, at this stage, industrial dispute current before the South Australian Industrial Relations Commission.
PN1002
And these are matters that are all before the South Australian Commission, yes?---That is right.
PN1003
Are they the corrections or additions you wish to make?---They are.
PN1004
That is the evidence-in-chief, if it please, your Honour.
PN1005
THE SENIOR DEPUTY PRESIDENT: Mr Austin, any questions?
PN1006
MR AUSTIN: No, thank you, sir.
**** SUSAN DENISE FENWICK XN MR NOLAN
PN1007
PN1008
MR WHITE: Thank you, your Honour.
PN1009
Ms Fenwick, in paragraphs 8 to 14 of your statement, you set out the union involvement in a number of bodies, committees or organisations to do with aged care and I just want to take you, if I might, to a number of those committees. The Aged Care Work-force Committee referred to in paragraph 12 of your statement. Is it the case, Ms Fenwick, that LHMU joined that committee in April 2003?---I was - I am trying to recall, I was still industrial officer for the national union part-time when that occurred and that was before that time. That was - I ceased being a national industrial officer in 2003, February 2003, so it was in the previous year that we were part of that committee. We were invited by the ACTU.
PN1010
The ANF has been a member of that committee since its inception, has it not?---I don't know if that is the case.
PN1011
It was certainly a member of the committee at the time the LHMU became involved?---Yes.
PN1012
That committee also has several subcommittees, does it not?---I believe so.
PN1013
It has a subcommittee, Establishment of Nursing Scholarships and Tender Evaluations subcommittee?---I don't know, but there are a number of subcommittees. We were involved in the support for aged care workers subcommittee.
PN1014
I put to you that it had a subcommittee about nursing scholarships. You don't know about that?---I am not aware of that.
**** SUSAN DENISE FENWICK XXN MR WHITE
PN1015
Certainly, you, or the LHMU, is not represented on that subcommittee?---No, not that I am aware of.
PN1016
There is a further subcommittee, the National Aged Care Work-force Strategy Consultative Forum?---We were - I am not aware of our involvement since I have not been the industrial officer. I was certainly involved in a committee that dealt with the work-force strategy. We had a day-long session in Sydney regarding the strategy for the work-force strategy. Again, it must have been in 2002. I am not aware of what the titles of those committees are any more as it is no longer my direct responsibility.
PN1017
To the best of your knowledge, ANF was represented on that subcommittee of which you just spoke?---Yes.
PN1018
There is a subcommittee, the National Aged Care Work-force Survey and Census subcommittee?---When I was involved as national industrial officer, that subcommittee had not yet formed. It was something that the committee I was involved on was planning to arrange, so I don't have direct knowledge of that any longer as it is no longer my responsibility.
PN1019
You speak also of the National Aged Care Alliance in paragraph 11?---Yes.
PN1020
That was an alliance that was formed after a meeting in April 2000?---I understand so, yes.
PN1021
That meeting was at the initiative of the ANF Catholic Health Australia and Uniting Care, was it not?---I understand that is true.
PN1022
Groups who were invited to the meeting were identified by the three sponsoring organisations?---Who were the sponsoring organisations at that time. I think that has increased now.
**** SUSAN DENISE FENWICK XXN MR WHITE
PN1023
Well, just limit the questions and answer?---Yes.
PN1024
And the ANF, being one of the three sponsoring organisations invited the LHMU and the HSUA to become part of the National Aged Care Alliance, did they not?---Again, I don't have direct knowledge of that but I understand that is true. That occurred before I was employed by the national union.
PN1025
Each of the organisations which have - or which formed part of the National Aged Care Alliance had at their own election, the option to become a sponsoring organisation, did they not?---Yes.
PN1026
There are now seven sponsoring organisations of which the ANF remains one?---I don't have direct knowledge of that any longer as it is not in my responsibility. When I was participating in the National Aged Care Alliance that certainly was the case.
PN1027
I put it to you that the LHMU has chosen not to be a sponsoring organisation in the National Aged Care Alliance?---Again, I don't have direct information relating to that.
PN1028
The ANF acts as the secretariat to the alliance?---Again, it did when I was aware of the alliance's activities in more intimate detail.
PN1029
The alliance has a number of working groups which meet from time to time, which working groups deal with funding. Are you aware of that?---Yes.
PN1030
Just tell me if these were subgroups or working groups which existed in your period of time?---Yes.
PN1031
Funding?---Yes.
**** SUSAN DENISE FENWICK XXN MR WHITE
PN1032
Complaints?---I think it wasn't active when I was there but I think it was in existence, yes.
PN1033
Accreditation?---Yes.
PN1034
Quality of care?---Yes.
PN1035
Work-force?---Yes.
PN1036
Continuum of care?---Yes.
PN1037
PN1038
On each of those working groups is the ANF represented?---I understand they would have been, yes.
PN1039
Were the LHMU represented on each of those working groups?---On a number of them at the time. I am not aware of what we are currently on at the moment.
PN1040
Can I suggest to you that the LHMU has not and does not chair any of the working groups?---Currently?
PN1041
Has not and does not. First, has not?---In the past, ever been on any of those working groups?
PN1042
No, chaired?---Chaired?
PN1043
Yes?---To my knowledge, that is correct.
**** SUSAN DENISE FENWICK XXN MR WHITE
PN1044
Does not, now?---I don't know.
PN1045
Are you aware of an organisation called the Aged Care Advisory Committee?---Are you talking about the Federal or the State body?
PN1046
Federal?---Federal body?
PN1047
Yes?---Yes.
PN1048
Is that a committee to receive information from the Department of Health and Ageing and to provide advice to the department?---Yes.
PN1049
The ANF is represented on that committee, is it not?---It certainly was when I was taking a more active interest in that, yes.
PN1050
And from your own, once again, knowledge, I understand that you have changed functions, Ms Fenwick, to your own knowledge, ANF are on that committee since its inception?---I understand so.
PN1051
The LHMU is not a member of the Aged Care Advisory Committee?---We have sought to be but to my knowledge, we have not been successful.
PN1052
Are you aware of the National Accreditation Agency Liaison group?---Not directly, no.
PN1053
Which is a committee for the accreditation agency to provide advice?---Not directly, no.
**** SUSAN DENISE FENWICK XXN MR WHITE
PN1054
Are you aware of the Resident Classification Scale Industry Liaison group, which is a committee which has been formed to look at the resident classification system and, what people commonly think is the excessive documentation required?---No, not directly. I have been involved in the review of the RCS and so have our members, so I am not 100 per cent sure what time that committee would have been established.
PN1055
You are not aware of that group?---Not the committee, not directly.
PN1056
In the meetings of the National Aged Care Alliance, where the ANF and LHMU are both represented, can I suggest to you that in your experience, there has been no occasion when there has not been a united voice possible from the two unions in respect of issues of aged care emerging from those meetings?---In my experience, there was one occasion where there was some quite strong difference of view but both of our organisations have very clearly taken the view that we should be working as far together as possible in that forum.
PN1057
So it was a result of that that the differences were contained in the forum and a common position put out arising from the forum?---No. The result of that was that it was impossible to reach consensus.
PN1058
Prior to your involvement as a federal industrial officer, you were also employed in the branch?---Yes, some time ago. There was a break in between, yes.
PN1059
You were employed in the branch in 1990?---'89, I think it was. May '89 to May 1991.
**** SUSAN DENISE FENWICK XXN MR WHITE
PN1060
Yes, and in one of the applications to vary the State award in 1990, you appeared - I will jog your memory with some transcript. In July 1990, Ms Fenwick, was the beginning or towards the beginning of the time the LHMU in South Australia were putting an award in place following the Structural Efficiency National Wage case. Does that ring a bell with you now?---In this area, there was an existing award. We were following the structural efficiency principle. We were applying it to an existing award.
PN1061
Yes, and application had been made to the State Industrial Relations Commission by the LHMU in respect of the variation of that award, existing award?---Yes.
PN1062
On 26 July 1990 - I have only given you the cover page and page 8 of the transcript, Ms Fenwick. You see you refer to it, at point 5 on page 8. This might be a nightmare going back 13 or 14 years?---Sorry, no, I haven't got my reading glasses either. Sorry, where are you - - -
PN1063
At point 5, on the second page, which is page numbered 8?---Yes.
PN1064
It has got: Ms Fenwick, and then the transcript of matters you have said. What I want to ask you about is this. The paragraph at the top, commencing, "There are a number of other unions..."?---Yes.
PN1065
That, I take it, Ms Fenwick, is you making submissions to the Commission. Are you able to read that without your glasses?---I am able to read it but it is a long time and I can't verify that and I am not 100 per cent sure which - there were a number of things we were doing with that award at the time, so I need to be able to locate that in my memory because one of the other things we were doing was to seek to include home care coverage in the scope of persons bound and I am not sure whether this is relating to that or it is relating to applying the national wage case or the State wage case principles.
**** SUSAN DENISE FENWICK XXN MR WHITE
PN1066
Regardless of what it relates to, are you able to identify yourself as the speaker?---It sounds like my language but I can't - without recalling it clearly and putting it into context.
PN1067
Right, well bear with me just a moment. Ms Fenwick, I have got more of that case. Unfortunately, page 6 is missing and I think that is because it is missing from the Commission file, but could you please have a look at that.
PN1068
MR NOLAN: Could I have a look at that too, before the witness is asked about it?
PN1069
MR WHITE: Well - - -
PN1070
MR NOLAN: Could I seek your Honour's leave. I could go over and have a look at - - -
PN1071
MR WHITE: Yes, volume 13 - I have just located it in volume 13, your Honour. It is in date order and it is towards the end of volume 13, your Honour. Ms Fenwick, when you are ready, I just really want to see if you are able to identify yourself as the - has your Honour located that?
PN1072
THE SENIOR DEPUTY PRESIDENT: Yes, I have.
PN1073
MR WHITE: Unfortunately page 6 was missing because page 7 is uninterrupted speech?---That looks like me, that's fine.
PN1074
Well, your Honour, now that Ms Fenwick has identified herself on transcript can I tender - if not the whole of the relevant pages but, at least, the document which I first handed to Ms Fenwick, being the cover page and page 8 of the transcript of 26th of - - -
**** SUSAN DENISE FENWICK XXN MR WHITE
PN1075
THE SENIOR DEPUTY PRESIDENT: Well, if there is no objection it might be easier to mark the extract that has been handed up. Is there any objection?
PN1076
PN1077
MR WHITE: Ms Fenwick, the position, to the best of your knowledge, is that there has been no activity undertaken by the ANF to thwart, or in any way delay the implementation of the State Industrial Relation Commission award arising out of the reclassification, has there?---Arising out of the recent decision of Commissioner McCutcheon's in March last year?
PN1078
Yes?---Since the decision's been made, no.
PN1079
Yes, no further questions, your Honour.
PN1080
THE SENIOR DEPUTY PRESIDENT: Any re-examination?
PN1081
MR NOLAN: There's no re-examination, your Honour. Might Ms Fenwick be excused?
PN1082
PN1083
PN1084
MR NOLAN: Mr Herbert, could you first of all state your full name and address for the record please?---Dennis Herbert, (address supplied).
PN1085
Mr Herbert, you prepared for the purpose of your evidence in this matter two statements, is that correct?---Yes, I have.
PN1086
Do you have them with you in the witness-box?---I do.
PN1087
The first of those is simply headed up: Witness Statement, and the second is headed: Further Witness Statement. Do you have both of those?---I do.
PN1088
PN1089
MR WHITE: Your Honour, I didn't rise to object but paragraph 6 of his first statement, ALHMWU6, I just draw to your Honour's attention as being the type of matter which I'm not going to continually jump to my feet and object about. There was similar statements in Ms Fenwick's statement, but I just draw it to your attention, your Honour, and just as long as it does not remain un-noted.
PN1090
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1091
MR NOLAN: I think that is understood, your Honour. That is the evidence-in-chief. Might Mr Herbert can now be cross-examined?
**** DENNIS HERBERT XN MR NOLAN
PN1092
THE SENIOR DEPUTY PRESIDENT: Any questions, Mr Austin?
PN1093
MR AUSTIN: No, thank you, sir.
PN1094
THE SENIOR DEPUTY PRESIDENT: Mr White?
PN1095
PN1096
MR WHITE: Mr Herbert, the Health Services Employees Award was the State award which was amended in 1996 and then was the subject of the award reclassification case in 2002?---That is correct.
PN1097
In 2002 - I think you say in paragraph 28 of your first statement:
PN1098
The union was of the view that the award no longer reflected the work being performed by PCAs.
PN1099
Yes?---That is correct.
PN1100
In part, or in large part, that was because of the increasing amount of work which PCAs had to perform?---That's correct.
PN1101
The increasing complexity of the work that they were obliged to perform?---That's correct.
PN1102
The increasing equity of patients in aged care facilities?---That's correct.
**** DENNIS HERBERT XXN MR WHITE
PN1103
The fact that many more, or a greater percentage of aged care recipients were older - - -?---That is correct.
PN1104
- - - and frailer and an increasing number of aged care recipients suffered from dementia?---That's correct.
PN1105
Were you involved in the preparation and the running of that case, Mr Herbert?---I was - sorry, excuse me, I've got a cold.
PN1106
You don't sound very well?---I was part of the negotiating team, yes.
PN1107
When you say "part of the negotiating team" were you part of the team which devolved, or devised a strategy of the case?---No.
PN1108
Were you part of the team which collected the evidence to be presented to the Commission?---I was.
PN1109
Were you part of the team, after the evidence had been led, which determined what submissions should be made to the Commission?---No, I was not.
PN1110
Now, Mr Butler, you have been a union official for quite some time - sorry, Mr Herbert, you have been a full time organiser now for nearly 13 to 14 years?---That's correct.
PN1111
Prior to becoming a full time organiser you had worked in the office of the LHMU for a few months on replacement, or secondment?---That's correct.
PN1112
From your workplace?---That's correct.
**** DENNIS HERBERT XXN MR WHITE
PN1113
Over that period of time, Mr Herbert, has been, or has seen, the introduction in a very large way of enterprising bargaining in to work sites throughout Australia?---Yes.
PN1114
Both by reason of changes to the Federal Act and like changes to the South Australian legislation?---Yes.
PN1115
It would be true to say, isn't it, that a large part of your organising work since 1992 would have been in negotiating and finalising enterprise agreements between the ALHMU and a whole raft of employees?---That is correct.
PN1116
Across a wide range of industries?---Yes.
PN1117
The LHMU has entered in to a range of enterprise agreements in South Australia, outside aged cared, in a wide range of industries?---That is correct.
PN1118
In all of the negotiations that you have been involved with in relation to enterprise agreements, has your experience been that employers have put matters beneficial to your members on the table during the negotiations?---My experience in enterprise bargaining is fairly limited, in particular in aged care.
PN1119
Can we put aged care to one side for the moment?---Yes.
PN1120
Well, perhaps before we put it to one side, can you explain how it is so limited?---Within the areas that I was covering there are only two sites that I can recall where I was intimately involving in negotiating an enterprise agreement, outside of aged care.
PN1121
Yes?---In answer to your question, those sites where we had significant membership and were able to draw on the power from that membership allowed us to negotiate fruitful outcomes.
**** DENNIS HERBERT XXN MR WHITE
PN1122
Is it the position in the organising structure of the LHMU in South Australia that organisers aren't involved in the negotiations of agreements?---Yes, they are.
PN1123
Well, since 1992, however, you say you have only been involved in two?---Outside of aged care?
PN1124
Yes, outside of aged care?---I personally have only been involved in negotiating two sites with EBAs.
PN1125
Would that be uncommon with organisers in the - - -?---It just happened to be the areas that I was looking after.
PN1126
Right?---So yes, it would be uncommon.
PN1127
In those two that you did, or were involved in negotiating did the employers come along and put a lot of good stuff beneficial to your members on the table?---No, no.
PN1128
That was a process then that you had to be involved with in terms - not to put it - well, you had to encourage them to put things on the table which were beneficial to your members?---That's correct.
PN1129
That bargaining process involved what? Did it involve some industrial action?---On some occasions, yes.
PN1130
Did it involve quite clearly a show of strength and force and unity from the workers at the work site?---Yes.
PN1131
It was only after those things that were shown to the employer, did the employer agree to bargain on matters which you thought were beneficial to your members?---That's correct.
**** DENNIS HERBERT XXN MR WHITE
PN1132
The fact that an employer would not put on the table matters which were beneficial to your members is not a reason, is it, not to pursue enterprise bargaining with that employer?---In itself, no.
PN1133
So in paragraph 30 of your statement, you are really there just saying - a common difficulty encountered by, may I suggest, a whole range of unions in enterprise bargaining -that is, quite often employers don't like to put things beneficial to members on the table?---Yes.
PN1134
Have you, as you have gone around aged care sites, explained to your members that the only way they can get gains above the safety net award is through enterprise bargaining?---Yes.
PN1135
Despite that explanation, you say, the members of LHMU in aged care in South Australia have decided not pursue that?---That is correct.
PN1136
You were a member of the Private Health Executive in 1998 - that is an internal branch, or branch committee, isn't it?---Yes.
PN1137
That Private Health Executive is made up of rank and file members as well as paid officials?---Correct.
PN1138
It is partly from that Private Health Executive that the union determines its strategy in aged care?---That is one of the mechanisms we use, yes.
PN1139
On 10 March '98, you see there was a meeting at which Sue Baldy, Dennis Herbert, Karen Bartel, etcetera, were in attendance. At that stage, Karen Bartel was working on a strategy in relation to enterprise bargaining, wasn't she?---That's correct.
**** DENNIS HERBERT XXN MR WHITE
PN1140
She put forward a strategy which was to take place in two stages?---That is correct.
PN1141
A resolution was passed by the Private Health Executive endorsing the two stage process of enterprise bargaining. The first step of which was a framework agreement and thereafter individual enterprise agreements. Do you remember that meeting?---I certainly remember the issue of enterprise bargaining, yes.
PN1142
The Private Health Executive agreed that the framework agreement should include substantive and procedural issues. By substantive issues, I take it that that means issues concerning wages and conditions of your members?---Yes, sir.
PN1143
Now, is it the case that since that time, because employers haven't put anything on the table that was beneficial to your members, that you have chosen - the branch has chosen not to engage in enterprise bargaining dispute - the resolution of the aged care - the Private Health Executive?---The Private Health Executive, which is now the Aged Care Campaign Committee, passed further resolutions after a period of time, but I don't know what that period of time was. It was a matter of some 6 to 12 months that superseded that resolution.
PN1144
Were there further resolutions passed because of the difficulty faced by the union in entering in to enterprise agreements?---Yes, in achieving the outcomes that were beneficial for our members.
PN1145
The fact of the matter is other than - essentially other than agreements which have been posed by employers, your branch has entered in to no enterprise agreements containing substantive matters of interest?---That's correct.
PN1146
Do you tell this Commission now that your members have been fully advised and fully informed of the fact that there will be no possibility of increases above safety net in the absence of enterprise agreements?---Yes.
**** DENNIS HERBERT XXN MR WHITE
PN1147
PN1148
MR WHITE: The LHMWU has run a number of sticker campaigns and badge campaigns and the like of recent times, one of which was titled: Time To Care. When were the dates of that campaign, Mr Herbert?---Time To Care was late 1999.
PN1149
Yes?---Through to 2000.
PN1150
A number of unidentified members, you say, spoke to you about an age care pamphlet put out by the ANF, and I refer you to paragraph 54 and 55 of your statement?---Yes.
PN1151
The slogan, you say that members had worked so hard to develop for their own time to care for age care campaign and that was why they were angry?---Yes.
PN1152
Can I show you this document. Do you have members at the Julia Farr Centre, Mr Herbert?---I believe we do.
PN1153
In 1996/'97 the ANF ran a Time To Care campaign, did they not?---I'm not aware.
PN1154
Looking at that document and the number of badges photocopied, none of them jog your memory of campaigns run by the ANF?---No.
PN1155
Your Honour, I don't tender that document now Mr Herbert is unable to identify it. I don't know whether it is convenient to mark for identification, your Honour, or we will just put it in later. I mean, it is a question of how you want to control the flow of paper from your end.
**** DENNIS HERBERT XXN MR WHITE
PN1156
THE SENIOR DEPUTY PRESIDENT: I'm happy for you to put it in later, rather than just have it transferred from one name to another.
PN1157
MR WHITE: Very well, your Honour. We will adopt that course, your Honour.
PN1158
Paragraph 57 of your statement deposes, Mr Herbert, to the fact that PCAs are very sure as to which union to join and that in their view is the LHMWU because it is the age care union, is that essentially the thrust of para 57?---Yes, it is.
PN1159
You also gave evidence, did you not, in proceedings in the South Australian Industrial Relations Commission in relation to a notification of a demarcation dispute by the LHMWU?---I did.
PN1160
That case was different to this case, or from this case, in that in that case what the LHMWU were trying to prove to the Commission was that there was confusion being sewn in the age care sector by the ANF recruitment campaign, that is what you were trying to show in that case, wasn't it?---Yes.
PN1161
In this case, the LHMWU as part of its overall case, is trying to show that the members are clear in the union they choose to belong to in the age care sector, that is part of the LHMWU case, isn't it?---Yes.
PN1162
In support of that proposition, in this case in paragraph 57, you give an opinion that PCAs are clear as to what union they belong to, or should belong to?---In particular, where we have sites where we have delegates and activists, yes.
PN1163
Yes. You see, that is almost the opposite of what you had said in the South Australian Industrial Relations Commission in the demarcation case, isn't it?---I don't recall.
**** DENNIS HERBERT XXN MR WHITE
PN1164
You said in that case:
PN1165
I first became aware of the ANF activity in trying to recruit PCAs in August 2001. I began receiving telephone calls from members about notices from the ANF stating they would be holding meetings to invite PCAs to join the ANF. Members expressed confusion about who was the correct union for PCAs. They were members of the LHMWU and the LHMWU had always represented their interests.
PN1166
Do you remember saying that now?---I do. In relation to the phone calls I received.
PN1167
Well, yes. Well, which is correct now for these proceedings, that PCAs are confused or that they know?---Well, in my opinion, in site where we have activists and delegates and where we are growing, PCAs are well aware that the LHMWU is the appropriate union.
PN1168
You didn't tell the South Australian Industrial Relations Commission that, did you?---No. I don't have the transcript in front of me.
PN1169
Have you got any explanation as to why you would not tell them that, given that the question of confusion was obviously a relevant matter for it?---Well, I can only answer the questions the way in which they are put to me.
PN1170
Yes, all right. Part of your organising responsibility over the years, Mr Herbert, has included I think child care?---No.
PN1171
No. Are you part of the Community Services Team?---That is correct.
PN1172
The Community Services Team of the LHMWU looks after a range of areas, including child care?---That is correct.
**** DENNIS HERBERT XXN MR WHITE
PN1173
Are you aware, Mr Herbert, that the LHMWU is a respondent to the Child Care South Australia Award, an award of the State Industrial Relations Commission?---Yes, I am.
PN1174
Are you aware that that award covers a range of classifications of child care worker?---I am.
PN1175
Those classifications start Child Care Worker Level 1, which is a base grade new entrant into the work-force?---I have no intimate knowledge of the Child Care Award.
PN1176
Well, what knowledge do you have about your membership in the child care sector?---Very little.
PN1177
Do you know if you cover, or you have as members, child care workers?---Yes, we do.
PN1178
Do you know what level of child care worker you have as members?---How many members, you mean?
PN1179
Well, sorry, can you take it from me that there are Levels 1 to 6 Child Care Worker Classifications in the award?---Right.
PN1180
In respect of the members that you have, do you know what levels those workers are, or those members are?---I don't look after child care whatsoever.
PN1181
Mr Herbert, in paragraph 58, you essentially - and I will paraphrase the proposition because what think you are trying to put - and if I paraphrase it incorrectly, please tell me, the proposition you are putting is that because nurses are quite often in-charge of PCAs, that it is inappropriate that those two classes of worker be in the same union?---What I'm saying in 58 is that it would be a conflict if that was to occur in those hypotheticals.
**** DENNIS HERBERT XXN MR WHITE
PN1182
It is a conflict because in your view one organisation cannot represent both boss and worker?---There would be a conflict, yes.
PN1183
Right. Have a look at this document. Now, do you recognise that document as being the South Australian Commission Child Care Award?---I do.
PN1184
That award covers, I suggest to you, not only Child Care Workers Grades 1 to 6, but also what I might call bosses, directors of the child care facilities, are you aware of that?---I will take your word for it. I'm not intimate with this award whatsoever. I never even look at this award. I deal with the Health Services Employees Award on a daily basis, that is the only award I deal with at the moment.
PN1185
Assuming what I say is correct, Mr Herbert, would it strike you as a matter which your union should immediately look at to resolve that conflict, to separate out the directors of the child care facilities in that award?---Look, that is not a matter for my comment.
PN1186
I'm just exploring how far you go in the, if I might call "boss v worker" situation described in paragraphs 58 and 59?---Mm.
PN1187
Do you think it is something that your union should now look at in respect of that award?---Well, I think with all due respect you have taken me out of context and I've given one example of why we say that the LHMWU is the appropriate union to join.
**** DENNIS HERBERT XXN MR WHITE
PN1188
I haven't gone to all of your examples?---Yes.
PN1189
I've gone to the ones that you have referred to in para 58 and 59 at this stage?---Yes.
PN1190
I paraphrase it once again as saying that your view is that it is inappropriate that bosses be a member of the same union as child care workers - bosses be the same union as workers, that is your general position?---Employers?
PN1191
Yes?---Yes.
PN1192
It is not just employers, is it, it is also employees who hold supervisory positions, is that the conflict that you see?---I see where the ANF member is the employer or the employer's advocate, on those hypotheticals there would be a conflict.
PN1193
Sorry, could you repeat that answer?---Yes. Where the - in particular, I refer to directors of nursing.
PN1194
Yes?---Who in the main are the employers. On those three - - -
PN1195
In terms of owning the - - -?---Well, the employees advocate, yes.
PN1196
Well, can we be clear that they are not the employers in terms of owning the facility?---Well, the representative employers. In most cases, we deal with the directors of nursing on a daily basis, as the advocate for the employee.
PN1197
Does your union have in place a policy by which that conflict can be dealt with in its own membership, for example, a conflict in the child care setting might arise between a director of the facility and a child care worker?---I'm not aware of the policy, no.
**** DENNIS HERBERT XXN MR WHITE
PN1198
Not just a specific policy in terms of child care?---Yes.
PN1199
But a policy in relation to any conflict between an employee and his or her superior who might also be an employee, does your union have any policy about handling those conflicts?---Not that I'm aware of.
PN1200
Okay. I mean, across the whole gamut of trade unionism, unless a union covers only one grade of employee, there will always be in a workplace some employees who have authority over others, I mean, that is just the case, isn't it?---That is correct.
PN1201
For example, at the zoo with which you are familiar, there are a number of levels of employees, some of whom whilst remaining eligible for membership of the LHMWU, exercise supervisory functions over others, that is the case, isn't it?---Yes.
PN1202
How does your union deal with situations where there might be a conflict between a supervisor and a supervised?---On the basis, what, that they are both members of the union?
PN1203
Yes?---I'm not aware that that is an issue that actually is raised, certainly not with me, so I'm not aware of any policy.
PN1204
Are you aware that the ANF has a policy in relation to that?---No, I'm not.
PN1205
You haven't looked at the further witness statement of Ms Thomas?---Have I?
PN1206
Yes?---No.
PN1207
Right. One of the jobs you did as an organiser was to organise a petition in respect of the ANF PCA Aged Care Enterprise Bargaining claim, do you remember that?---If there was one for the Aboriginal Elders Village.
**** DENNIS HERBERT XXN MR WHITE
PN1208
Yes?---Yes.
PN1209
That is exhibit 8 to your statement. You were involved in facilitating that petition, were you not?---Yes.
PN1210
All right. That was in respect of a claim which you exhibit as exhibit 7 - - -?---Hang on.
PN1211
Can you just look at your exhibit 7?---Yes.
PN1212
Okay, so the claim in exhibit 7 was put out and in response at the Aboriginal Elders Village you and I think Mr O'Connor, was it?---That is correct.
PN1213
Organised a petition?---That is correct, yes.
PN1214
In the petition you say that you:
PN1215
Were outraged by the ANF circulating an enterprise agreement that states it has been endorsed at this work site.
PN1216
Do you see that?---Yes.
PN1217
Now, where on the claim does it say that that claim has been endorsed at the work site, that work site?---On the top of the first page.
PN1218
Yes?---Under the ANF logo.
**** DENNIS HERBERT XXN MR WHITE
PN1219
Yes:
PN1220
Has been endorsed 3 December 2002.
PN1221
?---That is correct.
PN1222
You would take that to mean, do you, at this work site?---In this deed, yes.
PN1223
Or did you, that was the question. It does not say that, does it, Mr Herbert?---Sorry?
PN1224
It does not say it was endorsed at this work site?---The members view was that this was an endorsed document and that they had not endorsed it and that was the position to be put to management.
PN1225
Yes, all right. Now, can we just go through that claim?---Through the EB claim?
PN1226
Yes?---On the top of the first page?
PN1227
Yes?---Under the ANF logo.
PN1228
Says: been endorsed 3 December 2002?---That is correct.
PN1229
You take that to mean, do you, at this work site?---Our members did, yes.
PN1230
Well, did you, that was the question? It does not say there, does it, Mr Herbert?---Sorry?
**** DENNIS HERBERT XXN MR WHITE
PN1231
It does not say it was endorsed at this work site?---The members view was that this was an endorsed document and that they had not endorsed it and that was the position to be put to management.
PN1232
All right. Now, can we just go to that claim?---To the EB claim?
PN1233
Your members would, I take it, appreciate pay increases of 14 per cent such that brought them to comparable levels with the public sector?---I'm sure they would.
PN1234
So there is nothing in item 1 with which you disagree as a claim? You have to answer for the transcript?---No.
PN1235
Your members, no doubt, would be interested to finding out about salary sacrifice arrangements which would increase their disposable income?---Yes.
PN1236
So there is nothing wrong with that part of the claim?---No.
PN1237
A large number of your members, I suggest, would like a classification structure which gives them a career path during the course of their work?---Yes.
PN1238
That career structure is suggested in the claim commencing from: workers who do not have level III to those working towards getting it. That is a good thing to have as a claim, is it?---Yes.
PN1239
Particularly, Mr Herbert, when the claim also makes claim for assistance in study and costs and the like. I refer you to the bottom of page 4 in respect of that:
**** DENNIS HERBERT XXN MR WHITE
PN1240
Career progression for those that wish to attain certificates...
PN1241
Etcetera:
PN1242
...they be fostered and facilitated by the employer.
PN1243
That is something which your members would like, would they not?---Yes.
PN1244
A minimum number - sorry. Staffing which enabled a minimum number of hours of nursing care per day, per resident is something which your members would agree with?---Which clause are you referring to?
PN1245
Three?---Are you asking me would they agree with that quantum or agree with the notion that there should be - - -
PN1246
Well, let us start first with the notion that staffing should be fixed at a safe level to enable a minimum number of hours of care per person per day?
PN1247
MR NOLAN: I object to this line of question. How can you possibly be assisted by a proposition being put to a witness that employees would agree to improvements in their wages and conditions. No doubt, they would all like an overseas trip every year and a company supplied BMW but it hardly can further matters to put out a list, or a wish list as it were, and then seek various peoples assent to the proposition that it be a good idea if they could get a whole raft of improved terms and conditions. I mean we don't, I'm sure, take issue with the proposition in principle that everyone would like improved wages and conditions.
PN1248
THE SENIOR DEPUTY PRESIDENT: I may not necessarily agree with the examples you give, Mr Nolan, as to travel and a choice of car. Mr White, what do you say to that?
**** DENNIS HERBERT XXN MR WHITE
PN1249
MR WHITE: Your Honour, I don't pursue it. I was just exploring how it was the "outrage" that is referred to in the petition.
PN1250
Was the outrage, Mr Herbert, in relation to the fact that it was the ANF that suggested these conditions or that the conditions themselves had been suggested?---No, the outrage that the - it appeared to them that the ANF had purported to have sought their instructions to pursue an enterprise agreement at that particular work site. Their position were quite clear that was not the case and that was the message that was to be put to management and was put to management.
PN1251
Yes, thank you. I have no further questions, your Honour.
PN1252
THE SENIOR DEPUTY PRESIDENT: Any re-examination?
PN1253
PN1254
MR NOLAN: Mr Herbert, do you have the attachments to your witness statement, in particular, attachment 6 to your witness statement?---Mine aren't numbered.
PN1255
Well, do you have the one there that has the It's Time to Care leaflet with the photograph of the person with the elderly gentleman?---Yes, I do.
PN1256
You do. Was that one of the documents that was distributed by the ANF?---Yes, it was.
PN1257
Is the person in the document - that is the woman in the document, to your knowledge, a PCA?---She is, yes.
**** DENNIS HERBERT RXN MR NOLAN
PN1258
Do you know that particular individual, do you?---Yes, I do.
PN1259
Do you know - - -
PN1260
MR WHITE: I'm not sure how this arose in cross-examination, your Honour.
PN1261
MR NOLAN: Well, he was asked about these brochures.
PN1262
THE SENIOR DEPUTY PRESIDENT: You go ahead, Mr Nolan. I'm not sure where it is taking me.
PN1263
MR NOLAN: Just one more question. Do you know which union that particular individual is a member of?---She is a member of the LHMU.
PN1264
How do you know that?---Because I'm representing her in a matter at Ashman Grove Nursing Home at the moment.
PN1265
Yes, thank you. There's no other questions in re-examination, your Honour. Might Mr Herbert be excused?
PN1266
PN1267
PN1268
MR NOLAN: Thank you, Ms Buckler. Could you please state your name and address for the record again, please?---It is Robyn Lee Buckler, (address supplied).
PN1269
For the purposes of your evidence in this matter you have prepared two witness statements?---I have.
PN1270
Do you have those with you in the witness-box?---Yes, I do.
PN1271
The first of those witness statements is headed up: Witness Statement and the second one is headed up: Supplementary Witness Statement. Is that correct?---Yes, that is correct.
PN1272
Are there any corrections that you wish to make to either of those statements?---There is just one minor correction. On my original witness statement at point 4. It is to do with - it states along with the branch secretary national - and deputy national secretary I am a director of the Hospital ..... Group Training Scheme. That refers to Mr Jeff Carr. Mr Carr has since retired from the union and his position has been replaced by another officer.
PN1273
It is that the only change that you wish to make?---Yes, that is correct.
PN1274
So apart from that - - -
PN1275
THE SENIOR DEPUTY PRESIDENT: Are you saying there is some other officer who is a director?---Yes, that is correct.
PN1276
Yes. Go ahead.
**** ROBYN LEE BUCKLER XN MR NOLAN
PN1277
MR NOLAN: Perhaps for the completeness, who is other officer who is now the director?---It is Mr Lew Stubner, L-e-w.
PN1278
THE SENIOR DEPUTY PRESIDENT: What position does he hold otherwise in the union?---He is an organiser within the union.
PN1279
PN1280
MR NOLAN: That is the evidence-in-chief, may it please your Honour.
PN1281
THE SENIOR DEPUTY PRESIDENT: Mr Austin?
PN1282
MR AUSTIN: No questions, sir.
PN1283
PN1284
MR WHITE: Thank you, your Honour. Ms Buckler, is it fair to say that your particular skill in the union is in relation to training, the setting up of the national competencies, the establishing of a variety of items across industry?---It has been in the past, certainly.
**** ROBYN LEE BUCKLER XXN MR WHITE
PN1285
The LHMWU, according to your paragraph 7, participates or has participated in the South Australian Community Health and Services Industry Training Advisory Board?---Yes, that is correct.
PN1286
That is the relevant training or ITAB Advisory Board for aged care workers?---Yes, that is correct.
PN1287
Now nationally, but certainly in South Australia?---Yes.
PN1288
The process of ITABs was a process by which training might otherwise have taken place over a whole range of institutions in all the states was eventually homogenised if you like, with standard competencies throughout Australia?---Yes, that is right.
PN1289
But before that process finalised each State had an ITAB which advised the industry and Government about appropriate training for that industry in that state?---Yes, that is right.
PN1290
You are aware the ANF has been an active participant in that ITAB since its inception, are you not?---I would say that the ANF have been a participant in the ITAB. Yes.
PN1291
Indeed an ANF representative has often been a chairperson of the board?---Along with other industry representatives, yes.
PN1292
Most recently an ANF representative was a chairperson in 2001/2002?---Possibly. I don't have direct knowledge of that.
PN1293
Until late 2001, can I suggest that the LHMU was not a frequent participant in that ITAB?---There are often other demands on time and that it is not possible to attend all ITAB meetings.
**** ROBYN LEE BUCKLER XXN MR WHITE
PN1294
I understand the demands on time but could you just commit yourself to the question without providing explanation. It is true to say, isn't it, that the LHMU has not been a frequent participant in the ITAB processes within South Australia?---From which date? Sorry, if you could just repeat the question?
PN1295
I will give you some examples?---Certainly.
PN1296
In 1999 there were 15 meetings of the ITAB board, were there not?---I can't answer that.
PN1297
Okay. You have read, I assume the witness statements filed in this matter by the ANF?---No, I haven't.
PN1298
Has it been drawn to your attention that Ms Thomas, in her witness statement, paragraph 39 details the attendances at the ITAB - on the one hand ANF representatives and on the other hand LHMU representatives?---No it hasn't.
PN1299
Tell me if you are in a position to disagree with any of these matters. In 1999 ANF representative attended 15 out of 15 meetings of the board whilst LHMU attended only three. Are you in a position to disagree with that?---No.
PN1300
In 2000 ANF attended 12 out of 13, the ALHMU representative two. Are you in a position to disagree with that?---No.
PN1301
Since 2002 LHMU representatives have more regularly attended but since the end of 2002 neither the ANF nor the LHMU have been represented on the ITAB board at State level due to changes in the constitution of the board. That is correct, isn't it?---Yes.
PN1302
The new representative is to be nominated by the United Trades and Labor Council?---I am not in a position to disagree with that.
**** ROBYN LEE BUCKLER XXN MR WHITE
PN1303
All right. The process of the eventual accreditation of Certificate II, Certificate III and Certificate IV courses in aged work is a process which started in approximately 1990?---Yes, that is correct.
PN1304
It is the case, is it not that at or around 1990/1991 there a number of courses which were taught in the State system. Can I jog your memory by referring you a few of them?---You may, but I didn't have responsibility for that ITAB at that time.
PN1305
When did you get responsibility to the ITAB?---I can't be specific on the date but it was later, maybe in '95/'96 when I was initially appointed I only had responsibility for the hospitality division of the union.
PN1306
But in '95/'96 the process being gone through at that time was what I have earlier described as the homogenisation of this state?---Certainly if the process - yes, the process would have been similar, yes.
PN1307
Part of the process that was going through at that time was a process of making transition arrangements for courses from one State to the next, to translate into the new nationally recognised course?---Yes. Into the new structures, yes.
PN1308
A number of South Australian courses were subject to those transition arrangements, were they not?---Yes, that is right.
PN1309
So from the time that you have been on the ITAB you would be aware of a number of earlier South Australian courses. Yes?---Well, yes. Yes, in various degrees.
PN1310
Does that answer suggest that you are not intimately familiar with the transition arrangements between the State courses and the nationally recognised competencies and certificate levels now?---That would be a fair answer, yes. I am not intimately.
**** ROBYN LEE BUCKLER XXN MR WHITE
PN1311
Well, I shall still try to jog your memory?---Sure.
PN1312
You may recognise a number of these courses. Do you recall that in the early nineties there was a Certificate in Personal Care Work?---I am familiar with the title of that course. Yes.
PN1313
Can you just bear with me?---Sure.
PN1314
If you get confused with training we can join a club. There was a Certificate in Vocational Education Care Assistant Community Services, does that ring a bell?---No, it doesn't.
PN1315
There was a traineeship in 1994 - sorry in 1992, a traineeship in Nurse Assistant Aged Care?---I am familiar with the title of that one, yes.
PN1316
You are familiar in general terms as to the longevity of that course or how long it has been taught?---I am just aware of the titles and courses given my background in the area.
PN1317
Do you recall that in the early nineties there was a certificate in personal care work?---I'm familiar with the title of that course. Yes.
PN1318
Can you just bear with me for a minute? If you get confused with training, we can join a club. There was a certificate in vocational education care assistant community services. Does that ring a bell?---No, it does not.
PN1319
There was a traineeship in 1994 - sorry, in 1992, a traineeship in nurse assistant aged care?---I'm familiar with the title of that one, yes.
**** ROBYN LEE BUCKLER XXN MR WHITE
PN1320
You are familiar, in general terms, as to the longevity of that course, or how long it has been taught?---I'm just aware of the titles and courses, given my background in the area and with traineeships.
PN1321
You are aware, are you, of courses which were - use the same language as - - -?---Yes.
PN1322
- - - they do now, being the Certificate III Community Service - Services Community and Aged Care?---Yes.
PN1323
Those Certificate III courses were taught in the TAFE sector?---Yes.
PN1324
Can I suggest to you that they have been taught in the TAFE sector in South Australia from at least 1994?---Yes.
PN1325
In your knowledge, or to your knowledge, have they been taught prior to '94?---Not - I couldn't answer that definitely, no.
PN1326
Are you familiar with the course, Certificate III in Personal Servicing Worker Aged Care Trainee?---Yes. Close enough, yes.
PN1327
Close enough. Once again, whilst that uses Certificate III language now for the national standard, that was a Certificate III in the TAFE sector in - - -?---Yes.
PN1328
- - - South Australia. To the best of your knowledge, for how long was that course taught?---I wouldn't be able to answer that with any - - -
PN1329
All right. Was the effect of your evidence, Ms Buckler, this: in that at least from the early 1990s there were a variety of courses relevant to personal care work in aged care taught in South Australia?---Yes.
**** ROBYN LEE BUCKLER XXN MR WHITE
PN1330
That during the early to mid 1990s - sorry, from the early 1990s a process was adopted to create a uniform standard across all the States?---Yes, that would be correct.
PN1331
That throughout the 1990s part of that process involved ITAB examining the courses in each State and making transitional arrangements to the new Federal structure?---Yes. Very basically, yes.
PN1332
Eventually, the new Federal structure came into place in 1999?---Yes.
PN1333
It recognised that some people would still be part-way through the relevant State courses - - -?---Yes.
PN1334
- - - and permitted those workers to do - to finish those courses. So that the position was both the people who had completed the relevant State courses and those who are in the course of completing them, on completion, would be slotted across to a new national standard?---Yes.
PN1335
Are you aware of any training courses prior to 1990?---No.
PN1336
One of the features of the new regime in training is that workers - sorry, it is that it is recognised that workers obtain skills in a variety of ways?---Yes, that's right.
PN1337
If workers have obtained skills working on the job then subject to a proper process that prior learning can be recognised and contribute towards a certificate within the structure?---Yes, that's right.
PN1338
It is also part of the process that where a worker has achieved levels of competence - or achieved competencies that those competencies can be recognised in other streams, in other courses?---Yes, that's right.
**** ROBYN LEE BUCKLER XXN MR WHITE
PN1339
So that, for example, the position is that a Certificate III or Certificate IV Aged Care Worker could have both prior learning - so on-the-job learning, recognised towards obtaining a qualification as an enrolled nurse?---Yes. If the correct articulation arrangements are in place to do that, yes.
PN1340
Yes, yes. Articulation is, sort of, the transition?---You can call it transition, yes.
PN1341
Articulation. It is also the case that a Certificate III or Certificate IV Aged Care Worker who has done the course and achieved competencies can have those competencies recognised towards achieving a relevant certificate for enrolled nurse work?---As I said, if the articulation arrangements provide for that. In not all cases, that may occur.
PN1342
By saying that, do you say that not all competencies can be recognised towards the achieving of a further certificate. There has to be some common element, does not there?---Yes. Yes, that's right.
PN1343
In your experience, however, there are a number of common competencies between, on the one hand Certificate III and Certificate IV in Aged Care Work?---There are, yes.
PN1344
Certificate IV or Diploma in Enrolled Nurse competencies?---I'm not familiar with any of the competencies in enrolled nursing.
PN1345
Thank you, your Honour.
PN1346
THE SENIOR DEPUTY PRESIDENT: Any re-examination, Mr Nolan?
PN1347
MR NOLAN: There's no re-examination. Might Ms Buckler be excused from her attendance?
**** ROBYN LEE BUCKLER XXN MR WHITE
PN1348
PN1349
MR NOLAN: Your Honour, your timing wasn't too bad. That is the evidence that we have arranged to be called today. We can't promise that it will be as efficient in coming days, but we will do our best.
PN1350
THE SENIOR DEPUTY PRESIDENT: It is a promising start, Mr Nolan.
PN1351
MR NOLAN: I'm sorry?
PN1352
THE SENIOR DEPUTY PRESIDENT: It's a promising start.
PN1353
MR NOLAN: A promising start, yes. I suppose, we could always only go downhill from here. That is not a threat.
PN1354
MR WHITE: As long as Mr Austin continues.
PN1355
MR NOLAN: Yes, that is right. We propose to call Mr Butler first up tomorrow, and your Honour has that list, so we will continue working our way through the list. I don't think that there's anything that we can usefully do between now and quarter past 4 this afternoon.
PN1356
THE SENIOR DEPUTY PRESIDENT: Well, I adjourn until 10 o'clock tomorrow morning.
ADJOURNED UNTIL WEDNESDAY, 10 MARCH 2004 [4.07pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #ALHMWU1 OUTLINE OF SUBMISSIONS PN454
EXHIBIT #ALHMWU2 REPLY PN454
JEFFERY PAUL LAWRENCE, SWORN PN454
EXAMINATION-IN-CHIEF BY MR NOLAN PN454
EXHIBIT #ALHMWU3 STATEMENT OF JEFFERY PAUL LAWRENCE PN461
CROSS-EXAMINATION BY MR WHITE PN471
EXHIBIT #ANF1 CLAUSE 6 OF ENROLLED NURSES AND NURSING ASSISTANTS PRIVATE AWARD (WESTERN AUSTRALIA) PN568
EXHIBIT #ANF2 EXTRACT FROM AUSTRALIAN BUREAU OF STATISTICS AUGUST 2002 PN738
EXHIBIT #ANF3 AGREEMENT DATED 18/06/1993 PN793
EXHIBIT #ANF4 OUTLINE OF SUBMISSIONS PN971
RE-EXAMINATION BY MR NOLAN PN972
WITNESS WITHDREW PN976
SUSAN DENISE FENWICK, SWORN PN981
EXAMINATION-IN-CHIEF BY MR NOLAN PN981
EXHIBIT #ALHMWU4 FIRST STATEMENT OF SUSAN DENISE FENWICK PN989
EXHIBIT #ALHMWU5 SECOND STATEMENT OF SUSAN DENISE FENWICK TOGETHER WITH 20 ATTACHMENTS PN989
CROSS-EXAMINATION BY MR WHITE PN1008
EXHIBIT #ANF5 EXTRACT FROM TRANSCRIPT IN MATTER NUMBER 43 OF 1983 PN1077
WITNESS WITHDREW PN1083
DENNIS HERBERT, SWORN PN1084
EXAMINATION-IN-CHIEF BY MR NOLAN PN1084
EXHIBIT #ALHMWU6 STATEMENT OF DENNIS HERBERT PN1089
EXHIBIT #ALHMWU7 FURTHER STATEMENT OF DENNIS HERBERT PN1089
CROSS-EXAMINATION BY MR WHITE PN1096
EXHIBIT #ANF6 MINUTE PN1148
RE-EXAMINATION BY MR NOLAN PN1254
WITNESS WITHDREW PN1267
ROBYN LEE BUCKLER, SWORN PN1268
EXAMINATION-IN-CHIEF BY MR NOLAN PN1268
EXHIBIT #ALHMWU8 STATEMENT OF ROBYN LEE BUCKLER PN1280
EXHIBIT #ALHMWU9 FURTHER STATEMENT OF ROBYN LEE BUCKLER PN1280
CROSS-EXAMINATION BY MR WHITE PN1284
WITNESS WITHDREW PN1349
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