C2004/2314, Transcript of Proceedings [2004] AIRCTrans 1437 (15 April 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 6672

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2004/2314

HEALTH SERVICES UNION OF
AUSTRALIA

and

GOULBURN VALLEY HEALTH

Application under section 170LW of the Act for
settlement of dispute (certification of agreement)
re non-payment of higher qualifications allowance
to scientists proceeding on long service leave

MELBOURNE

3.30 PM, MONDAY, 5 APRIL 2004

PN1

THE SENIOR DEPUTY PRESIDENT: Yes, I will take the appearances, please.

PN2

DR R. KELLY: If the Commission pleases, I appear for the Health Services Union of Australia.

PN3

MR McCULLOUGH: Good afternoon, your Honour. If the Commission pleases, I appear for the VHIA on behalf of Goulburn Valley Health. With me is MS MONOTTI present here on behalf of the hospital. If the Commission pleases.

PN4

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Dr Kelly, what is it all about?

PN5

DR KELLY: Mr Senior Deputy President, this involves the refusal of Goulburn Valley Health to pay a scientist proceeding on long service leave higher qualifications allowance that he is entitled to under the terms of the enterprise agreement and the underpinning award. So it is about, in a sense, a dispute about whether or not that higher qualifications allowance is payable while the member is on long service leave. There is no dispute about the payment of the amount itself, it is a 10 per cent of the base salary based on the member holding a Fellow of the British Institute of Medical Scientists.

PN6

THE SENIOR DEPUTY PRESIDENT: Yes, well, what are the relevant provisions in the Certified Agreement?

PN7

DR KELLY: The Certified Agreement has a provision in it in clause 9, appendix B, sorry, clause 9, see appendix B is the salaries and allowances in terms of the quantum. Clause 10 is a higher qualifications allowance. 10.1 provides the allowance that shall be expressed on a weekly basis. 10.2 then goes on to types of higher qualifications and the allowance which pertains to those higher qualifications.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes.

PN9

DR KELLY: So going down to PhD, Doctor of Science, and other recognised equivalent qualifications, 10 per cent of the base rate, that's not at issue. 10.4.3 provides that the outcomes are to be no less than what will be determined in the General Nurses decision. Essentially, that gave a quantum which would be the same as registered nurses in terms of quantum.

PN10

I draw your attention to another provision in that agreement which is 5.3 subclause 5.3 on page 3 which says:

PN11

It is the intention of the parties that no employee who is or would otherwise become covered by this agreement shall suffer any loss or diminution of entitlements whether accrued or otherwise or any other disadvantage to their terms and conditions of employment by reason of this agreement.

PN12

I then take you to the relationship with the parent award and certified agreements which is clause 5 on page 2:

PN13

The agreement shall be read in conjunction with the Health Services Union of Australia Victoria Public Sector Interim Award 1993, medical scientists, pharmacists and psychologists sections.

PN14

I know you are familiar with this old award.

PN15

THE SENIOR DEPUTY PRESIDENT: No, I'm not.

PN16

DR KELLY: In terms of me being here before and perhaps I can remind you.

PN17

THE SENIOR DEPUTY PRESIDENT: It's not that one that - - -

PN18

DR KELLY: It's that one again. It's the one where that 1993 interim award refers back in turn to the old - - -

PN19

THE SENIOR DEPUTY PRESIDENT: State determination, yes.

PN20

DR KELLY: - - - state determination, state awards, that's correct.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes.

PN22

DR KELLY: So I need to take you to the provisions of the Medical Scientists Award. You will recall in the 1993 interim award, there is a list of awards to which - which apply.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes.

PN24

DR KELLY: And the Medical Scientists Award is one of those awards. So I need to take you to the long service leave clause of that underpinning award in order to demonstrate that the higher qualifications is in fact payable while the person is on long service leave.

PN25

THE SENIOR DEPUTY PRESIDENT: Haven't those awards been simplified yet?

PN26

DR KELLY: They have been simplified, your Honour, but the provisions of the enterprise agreement was that - - -

PN27

THE SENIOR DEPUTY PRESIDENT: Oh, it still goes back to the award.

PN28

DR KELLY: - - - it still goes back. Yes, the parties are discussing at the moment potential for getting a single instrument next time we have enterprise agreement.

PN29

THE SENIOR DEPUTY PRESIDENT: Sounds like an excellent idea. Do you want to hand up the - - -

PN30

DR KELLY: Yes, I will. If your Honour pleases.

PN31

THE SENIOR DEPUTY PRESIDENT: - - - excerpt from the Medical Scientists Award.

PN32

DR KELLY: Yes, this is extracts only of the 1991 Medical Scientists Award in relation to long service leave and in relation to the calculation of ordinary pay, your Honour.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes.

PN34

DR KELLY: The first extract to which I will take you is clause 17, long service leave. Section (a) sets out the entitlement to long service leave - that's not an issue. On the second page of the photocopy which is - sorry, the page numbers are not very clear, page 27 which is the right hand page on the second page.

PN35

THE SENIOR DEPUTY PRESIDENT: Yes.

PN36

DR KELLY: (f) definitions:

PN37

For the purpose of this clause the following definitions apply: pay means remuneration for an employee's normal weekly hours of work calculated at the employee's ordinary time rate of pay provided in clause (1) and parts 1, 2 and 3 hereof at the time leave is taken.

PN38

That's all I need to say about that.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes, they have to go to ordinary time rate of pay, do they?

PN40

DR KELLY: It does. It goes to ordinary time rate of pay.

PN41

THE SENIOR DEPUTY PRESIDENT: Yes.

PN42

DR KELLY: Clause 1 in part 1 is the relevant clause as parts 1, 2 and 3 of the old award apply to the public sector to private hospitals and the private sector respectively. Part 1 is that part of the old award which applies to the public sector and this matter involves a public sector employee. I can take you to the second extract.

PN43

THE SENIOR DEPUTY PRESIDENT: Yes.

PN44

DR KELLY: Page 3: Part 1, to what the long service leave clause refers in accordance with the ordinary time rate of pay provided in clause 1. Clause 1 of part 1 is wages per week of 38 hours. There are a number of sections in clause 1 of part 1 and they are labelled alphabetically. So, A, B, C, D and so on. The person concerned is a Scientist Grade 3 so that part of his pay is determined by clause D, Scientists Grade 3.

PN45

THE SENIOR DEPUTY PRESIDENT: Yes.

PN46

DR KELLY: And there is rates of pay there which are varied in turn by the enterprise agreement. If we continue down, there's other classifications Grade 5 Deputy Director Senior Scientist.

PN47

THE SENIOR DEPUTY PRESIDENT: Yes.

PN48

DR KELLY: Until we get to alphabetical (K) and then that refers to all of these qualifications. (K)(ii) is for a Fellow of the Australian Association of Clinical Biochemists, Fellow of the Australian Institute of Medical Laboratory Scientists et cetera which is the equivalent of the doctoral allowance which is 10 per cent of the Scientist Grade 1 first year of experience.

PN49

So we would submit, your Honour, that ordinary pay for the purpose of long service leave means pay as per clause 1 and clause 1 includes both the rate of pay for the particular grade and in (K) the rate of pay for the particular qualifications that the person holds.

PN50

THE SENIOR DEPUTY PRESIDENT: Yes, now I understand why you say it is payable. Mr McCullough, why do you say it's not payable.

PN51

MR McCULLOUGH: Your Honour, not to put the matter too highly, I'm conscious of the fact that it has been notified under section - well pursuant to section 170LW. I take it, your Honour, you've got a copy of the agreement before you. If not, I can hand a copy of that up.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes.

PN53

MR McCULLOUGH: Clause 45, your Honour, of that agreement provides for the resolution of grievances and in particular, your Honour, if I could take you to subsection (iii) in particular subclause (1) that states:

PN54

Where matters remain unresolved following the application of the steps referred in subclause 45.2 above, then as provided by section 170LW(a) of the Workplace Relations Act, they shall be referred to the Industrial Relations Commission for assistance in reaching settlement through conciliation in the first instance or arbitration.

PN55

Your Honour, at point (d) of 45.2.1 makes a statement that if the matter is unresolved then the state union representative shall be advised in a meeting arranged. To the best of my knowledge the parties have not met to discuss this particular matter although I am conscious of the fact that there have been telephone discussions and a range of correspondences. It would perhaps have benefited both parties to have met face-to-face to discuss the - their various positions and to see whether or not agreement could have been reached. It may have assisted in the resolution of the matter.

PN56

THE SENIOR DEPUTY PRESIDENT: Well, I have said to parties in various matters that I object to being involved until that part of the dispute or grievance process has been reached that requires the Commission to be involved and that involves all the preceding steps having been taken. If that is not the case, we shouldn't be here.

PN57

MR McCULLOUGH: Yes, your Honour.

PN58

THE SENIOR DEPUTY PRESIDENT: Well, not yet.

PN59

MR McCULLOUGH: I beg your pardon?

PN60

THE SENIOR DEPUTY PRESIDENT: Not yet, any way.

PN61

MR McCULLOUGH: Having said that, I am anxious to take advantage of the fact that I have Ms Monotti from Goulburn Valley Health who is ably filling in for the Director of Human Resources who is currently on sick leave.

PN62

THE SENIOR DEPUTY PRESIDENT: Okay, so you want me to deal with it, well why shouldn't it be paid then? Let's deal with the merit of it.

PN63

MR McCULLOUGH: Your Honour, with regards to that and I won't put this too highly it simply represents the nature of the difficulty or the nature of the dispute between the parties. Dr Kelly has ably taken you to the relevant provisions. Clause 10 of the agreement does contain the provision. That entitlement arose following the certification of the relevant agreement on 6 December 2002. It contains no statement there as to whether or not it has influenced part of ordinary time wages for the purposes of long service leave or not. That's not the case with some other industrial agreements. But - although pay is defined under the terms of the award, I didn't have the benefit of receiving a copy of the extract that Dr Kelly was reading from.

PN64

THE SENIOR DEPUTY PRESIDENT: Have you performed your own research?

PN65

MR McCULLOUGH: Just coming to that your Honour. With regards to that, the copy that I had made a reference to part 6 of clause 1, having said that I'm not sure what part 6 refers to and I'm not sure there is a part 6 under the award but there is a clause - - -

PN66

THE SENIOR DEPUTY PRESIDENT: I'm not sure to what you are referring either.

PN67

MR McCULLOUGH: No, your Honour, it does have a reference to clause 1 which does refer to the wages clause which did have the award entitlement with regards to higher qualifications allowance. The nature or the balance of the dispute between the parties is to whether the absence of an express statement for the agreement entitlement to higher qualifications allowance means that it forms part of ordinary time wages in the same way that the award entitlement did.

PN68

THE SENIOR DEPUTY PRESIDENT: Well, why wouldn't it?

PN69

MR McCULLOUGH: It simply the absence of an expressed statement but your Honour, in saying that, I did allude to the fact that the parties haven't met to discuss it and I would certainly like to take advantage of the opportunity to do that today with the point of resolving it. If the Commission pleases.

PN70

THE SENIOR DEPUTY PRESIDENT: Yes. Well, it should only take you about five minutes, we will adjourn for 10 minutes.

PN71

MR McCULLOUGH: I think five minutes may be adequate, your Honour.

PN72

THE SENIOR DEPUTY PRESIDENT: I beg your pardon?

PN73

MR McCULLOUGH: I think five minutes may be adequate, your Honour.

PN74

THE SENIOR DEPUTY PRESIDENT: Yes, Mr McCullough.

PN75

DR KELLY: I would like to respond to the assertion there has been no meeting. The Goulburn Valley Health is based in Shepparton so in terms of face-to-face meetings, yes, there has been no face-to-face meeting. There has been e-mail correspondence between Ms Ball and Mr Ian Dempsey, the Human Resources Manager. On 16 December 2002, Ms Ball spoke to Mr Dempsey about this matter by telephone, he said he would check the advice he received from the VHIA and respond to the union. We didn't receive a response. So, Ms Ball on her own reconnaissance basically contacted the VHIA, spoke to Mr Djoneff who confirmed his understanding was congruent with that of the union. This was advised to Mr Dempsey - - -

PN76

THE SENIOR DEPUTY PRESIDENT: His understanding was what?

PN77

DR KELLY: The same as the union's understanding.

PN78

THE SENIOR DEPUTY PRESIDENT: So what are we doing here?

PN79

DR KELLY: I don't know, your Honour, I'm puzzled.

PN80

THE SENIOR DEPUTY PRESIDENT: Well, I am too.

PN81

DR KELLY: We wrote to Mr Dempsey on 11 March 2003 requesting the payment of the entitlement. He responded and quoted the nurses EBA as the reason why it shouldn't be payable. Ms Ball responded directly back to him on the same day, 12 March, she also put in her letter that failure to pay the entitlement would leave us with no option other than notifying a dispute with the Commission which we have done. They received the dispute notice. On Friday, Ms Ball spoke to Mr McCullough about this matter, walked him through the award, the agreement and all the entitlements. Mr McCullough said he would either fax us this morning to let us know he agreed or he would not fax us this morning. We received no fax and - - -

PN82

THE SENIOR DEPUTY PRESIDENT: And here we are.

PN83

DR KELLY: And here we are. So, yes, there has been no face-to-face meetings.

PN84

THE SENIOR DEPUTY PRESIDENT: Yes, well, understandably so. The union has certainly complied, it would appear to me, with the dispute settling procedure. Five minutes, Mr McCullough.

PN85

MR McCULLOUGH: That would be appreciated, your Honour.

PN86

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Djoneff is usually right, you know.

SHORT ADJOURNMENT [3.44pm]

RESUMED [3.55pm]

PN87

THE SENIOR DEPUTY PRESIDENT: Yes.

PN88

MR McCULLOUGH: Your Honour, thank you for the time for discussions, they were most instructive and the parties have agreed that the matter is resolved by way of payment of the higher qualifications allowance and the long service leave and it will be processed at the next pay period. If the Commission pleases.

PN89

THE SENIOR DEPUTY PRESIDENT: Well, I'm glad it was resolved, I don't know why it needed to be done in this forum rather than amongst yourselves but there you go. Adjourn the Commission.

ADJOURNED INDEFINITELY [3.56pm]