C2003/5876, Transcript of Proceedings [2004] AIRCTrans 240 (9 January 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 5799
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2003/5876

HEALTH SERVICES UNION OF AUSTRALIA

and

VICTORIAN HOSPITALS' INDUSTRIAL ASSOCIATION

Application under section 170LW of the Act
for settlement of dispute re union's claim
for a classification for Grade 5 dietitian

MELBOURNE

10.00 AM, MONDAY, 22 DECEMBER 2003

Continued from 11.12.03

PN97

THE SENIOR DEPUTY PRESIDENT: Yes, there is no change in appearances. I understand - - -

PN98

DR R. KELLY: Yes, your Honour, I appear for the HSUA. Ms Bremner was previously appearing in this matter.

PN99

THE SENIOR DEPUTY PRESIDENT: That is right, yes, sorry, Dr Kelly. And, Mr Corboy, you are here again for the VHIA. Well, there was to be a meeting last week and you are going to report back and tell me the result of it.

PN100

MR CORBOY: Yes, your Honour. Mr Djoneff did put the position which Ms Bremner requested us to put to a meeting of HR Managers on Wednesday morning. That was the without prejudice arrangement where it would be limited similar to the principal scientists clause in the simplified award and the named health services were provided by Ms Bremner via e-mail and these were identified and put to the meeting. Unfortunately after a fair amount of discussion, the hospitals have come back to that perennial issue that they believe it - well, that they have been advised it won't be funded by the Department of Human Services.

PN101

Now prior to convening this morning, Dr Kelly and I have had discussions about approaching the Department. I will request that we put the view of our members in writing to the Department. I believe Dr Kelly has written or is about to write to the Department to see if we can progress the funding issue. It then comes down to where do we go from here. In a previous discussion with Ms Bremner that was outside this Commission, Ms Bremner was talking about putting an agreed facts document, or obtain - or us conversing or exchanging documents for an agreed facts document which would possibly limit the time necessary for any arbitration and might help focus the view of the parties.

PN102

In my discussions with Mr Djoneff after the meeting, he believes that the agreed facts document would be beneficial to focus our members and also to allow the parties to identify areas where there is a different view. There is a matter which Mr Djoneff has raised, and unfortunately can't be here this morning, on jurisdiction. Dr Kelly and I have discussed that, she has a differing view to that and I respect that view, however we believe that there may be an argument regarding jurisdiction arising out of the certified agreement.

PN103

I am not unfortunately able to progress that argument any further this morning but we would be hoping that the agreed facts document and the subsequent process from there would enable the parties perhaps to have a very clear idea of how far the arbitration would go. If the Commission pleases.

PN104

THE SENIOR DEPUTY PRESIDENT: Yes, Dr Kelly.

PN105

DR KELLY: Your Honour, my concern with the matter of jurisdiction is that this claim has been before the VHIA and its members since the beginning of October and we have had a number of hearings in the Commission, or by way of conference, since 20 October and now the VHIA raising a vague question of whether or not there is jurisdiction for the Commission to hear and determine this matter. And that concerns me greatly as the matter has been on foot for two months and this is the first time we have heard a jurisdictional argument being foreshadowed and the VHIA has come along here this morning without being able to actually articulate what the jurisdictional difficulty is that it sees.

PN106

And I see this as very problematic and I guess that in my opinion we need to deal with that before we proceed onto an agreed facts document. Now clearly from the union's point of view we believe that there is substantial merit in the claim, we believe if it goes to arbitration then there will need to be inspections, evidence, witness statements, cross-examination, you know, it will be a fully blown arbitration, that the merits are there, but I can't see the point in either of the parties proceeding along a track to an agreed facts document if we are saying there is a jurisdictional impediment to the matter being dealt with by the Commission.

PN107

Secondly I just would like to establish from the VHIA whether or not they believe that, and you, your Honour, believe that conciliation has reached its end point. I think that needs to also be clarified, at least from the union's point of view. It seems to me from the submissions of the VHIA that what we are faced with here is not an opposition to the claim on its merits but a reluctance to deal with it because of some perception that the matter will not be funded, the outcome will not be funded. And I think we need to look at that issue closely as well.

PN108

If there is no objection on merit and the matter is a matter of funding, well that is an internal matter for the hospitals, the agencies, the VHIA, and the DHS. However, no doubt Ms Bremner has brought to your attention the clause in the certified agreements, which is the same in each of the certified agreements, that the outcomes determined by the Commission will be fully funded from sources outside the current agreed funding. Now clearly there is a difficulty in that the Department of Human Services is not a party to the agreements, but certainly the Department of Human Services' representative gave an undertaking on transcript when the matter was before Commissioner Blair in 2000 that all outcomes would be fully funded.

PN109

The dietitian Grade 5 claim was put aside by the parties and agreed that it would be dealt with over the life of the agreement. So the implication is that the outcomes of the total agreement would be funded by the Department of Human Services. Our position would be that, irrespective of funding, the matter needs to be heard and determined on its merits. So I think that we need to clarify what the process is. If the funding is a hurdle, does that stand in the way of the matter being dealt with by the Commission. I know Ms Bremner suggested a compulsory conference might have been a useful way to proceed, perhaps that could be revisited, your Honour.

PN110

With respect, Mr Djoneff has not communicated directly with the union, yet it was Mr Djoneff that had the meeting with the hospitals and it seems to be Mr Djoneff who has the problem or the concern that there may be a jurisdictional issue. We also have the Department of Human Services as the funder and we need to establish from them what their attitude is to the funding of the claim. And as you are aware, the claim is not a significant one in terms of costing when you look at the overall budget of a public hospital, particularly a multi-campus public hospital. We are looking at an increase per annum of probably 13 to $15,000 a year which is insignificant in the budget of these hospitals.

PN111

THE SENIOR DEPUTY PRESIDENT: And there are only nine hospitals are there?

PN112

DR KELLY: Yes, that is correct, your Honour. So the amount of money we are talking about is insignificant; it is a flea bite in terms of overall hospital funding. Mr Corboy did refer to the possibility of writing to the Department of Human Services, in fact Ms Bremner has written over my name, and copy to you, your Honour, on 18 December to Lance Wallace, who is the director of resources at the Department of Human Services, seeking confirmation of their Department's acceptance of their obligations to fund the outcomes.

PN113

And in that letter she has referred to clause 47 of the Public Sector Agreements and clause 42, which provides that the cost outcomes will be fully funded. Your Honour, I leave my submissions there; so I think there is a number of issues that need to be determined.

PN114

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Dr Kelly. Yes, Mr Corboy, is there agreement in principle as to the classification for dietitians class 5?

PN115

MR CORBOY: The issue that I have been able to report back to the Commission on is the issue of whether they accept the claim or not regarding whether they can pay the claim or they can fund it.

PN116

THE SENIOR DEPUTY PRESIDENT: That wasn't my question.

PN117

MR CORBOY: I know, I am just going to that, your Honour.

PN118

THE SENIOR DEPUTY PRESIDENT: Well - - -

PN119

MR CORBOY: The issue regarding merit, we have had private discussions with our members on merit, I am not at liberty to put those discussions to the Commission at this stage because if it goes to arbitration hopefully there will potentially be some argument to have the agreed facts document. I think there is some sympathy in the field for the position of these dietitians, and that is about as far as I can go. When we go to the issue of agreement of the pay rate, the HR Managers acknowledge that the rate selected by Ms Bremner is a comparable rate for principal scientists and indeed it is, I believe, the lower rate in the grade 5 level within the award.

PN120

However there has been, I suppose, no testing of that from our members' side as to what they believe is an appropriate rate, but there is acknowledgment there that it is the lower of the rates of the grade 5. The issue - - -

PN121

THE SENIOR DEPUTY PRESIDENT: What do you say about - go on.

PN122

MR CORBOY: - - - the issue when it was first raised was clouded by the grade 3 and the grade 4 changes to the definition in the original claim. Ms Bremner has now, I suppose, limited the claim on a without prejudice basis just to the grade 5. We have approached that with our members and they say that they just cannot afford it without the appropriate funding. When we go to the issue of the Department and a compulsory conference, I believe that a compulsory conference may be suitable for our members to perhaps come to see if they can reach some agreement. There is an issue regarding DHS not being bound by this agreement, as the agreement is between the union and the individual employers - - -

PN123

THE SENIOR DEPUTY PRESIDENT: But the Department did give undertakings to Commissioner Blair did it not?

PN124

MR CORBOY: I believe they did, your Honour, but I wasn't part of that hearing process. I can go back through transcript to see what undertakings they were given.

PN125

THE SENIOR DEPUTY PRESIDENT: Well, there is no reason why we shouldn't accept what Dr Kelly says, is there?

PN126

MR CORBOY: I have got no - - -

PN127

THE SENIOR DEPUTY PRESIDENT: No, well, I accept what Dr Kelly said.

PN128

MR CORBOY: - - - I have got no evidence to the contrary and I do believe that Dr Kelly would be phrasing that correctly - - -

PN129

THE SENIOR DEPUTY PRESIDENT: Yes.

PN130

MR CORBOY: - - - without resorting to transcript. What we were hoping with the agreed facts document is to perhaps focus the attention of our members onto the issues and to see whether they would be able to perhaps give this another look. I know Ms Bremner is away for the school holidays, for most of January, so we would be looking at an arbitration period possibly in middle February.

PN131

THE SENIOR DEPUTY PRESIDENT: Well, I haven't said that there will be an arbitration, Mr Corboy.

PN132

MR CORBOY: I am just saying that if we were going down that path.

PN133

THE SENIOR DEPUTY PRESIDENT: And I am not disposed to agree to that at this stage.

PN134

MR CORBOY: Yes. I would be hoping that we would be able to - we will write to the Department, Dr Kelly has written to the Department, we would certainly be hoping for the agreed facts document to enable us to provide more focus to this particular debate. With the - - -

PN135

THE SENIOR DEPUTY PRESIDENT: And what is this jurisdictional argument that you had?

PN136

MR CORBOY: The jurisdictional argument which was discussed is, I suppose, the wording of 47.1:

PN137

That the following matters may be dealt with over the life of the agreement.

PN138

And there is no process identified with being dealt with. There is also - - -

PN139

THE SENIOR DEPUTY PRESIDENT: Well, it gives me open slather then, doesn't it?

PN140

MR CORBOY: There is also a scenario when you look at the Blair decision, I don't believe Commissioner Blair made a recommendation for grade 5 in his decision of 2000. I believe that was one area where he made no particular recommendation which appeared in a lot of his decisions at that time.

PN141

THE SENIOR DEPUTY PRESIDENT: And what does that mean? If he didn't, so what? What follows?

PN142

MR CORBOY: Well, he heard the claim - - -

PN143

THE SENIOR DEPUTY PRESIDENT: Yes, and he made no recommendation, what follows?

PN144

MR CORBOY: - - - and he made no recommendation.

PN145

THE SENIOR DEPUTY PRESIDENT: What follows? Why are you telling me that?

PN146

MR CORBOY: Well, I am just saying that - is that determined to be an outcome of the Blair decision?

PN147

THE SENIOR DEPUTY PRESIDENT: Yes, but the - - -

PN148

MR CORBOY: Because the outcome was that he made no recommendation.

PN149

THE SENIOR DEPUTY PRESIDENT: Yes, and it has been left to the parties to work it out, and failing that the Commission no doubt. Well, what I am going to do is I am going to have a compulsory conference. I think that an agreed facts document would be useful and it will enable the parties, the Department, and the Commission to know what is agreed and what isn't agreed and what the issues are. It seems to me that if there was funding there is no impediment to the union and the employers agreeing on an appropriate classification and rate for dietitian grade 5 from what I hear between the parties.

PN150

And an agreed facts document may well focus the parties on what the appropriate classification and rate should be. At this stage it is premature to require you to indicate any further what the jurisdictional impediment is because I am not arbitrating and we don't need to waste time and money procuring such arguments at this stage. If we do ultimately have to go to arbitration well then that will be the time at which jurisdictional arguments are put. So it is a matter of finding a convenient time to have a conference, which will be a compulsory conference. I will ask the parties to give me the names of those who need to attend, we will do that perhaps off the record, but Mr Djoneff will be one of them so we need to know what his availability is too. Before we go off the record to establish a time for a compulsory conference and the identities of those who will be required to attend, is there anything either of you wishes to say on the record?

PN151

MR CORBOY: No, your Honour.

PN152

THE SENIOR DEPUTY PRESIDENT: We will go off the record.

SHORT ADJOURNMENT [10.14am]

RESUMED [10.17am]

PN153

THE SENIOR DEPUTY PRESIDENT: I am going to convene a compulsory conference at 2.15 on Tuesday, 17 February 2004. The people who will be required to attend that conference are Mr Djoneff from the VHIA, Mr Lance Wallace, the Director of Resources from the Department of Human Services, Dr Kelly from the union, each of the Human Resources Managers from the nine hospitals - - -

PN154

DR KELLY: And Ms Bremner - could Ms Bremner have a seat on the table?

PN155

THE SENIOR DEPUTY PRESIDENT: Well, she can come, I won't compel her to come but she can come, and it is efficient if you are representing the union but of course she is not excluded nor are other relevant people excluded, I won't summons Mr Corboy or compel Mr Corboy to attend, no doubt he will be here. Were there any - is there anybody else who I haven't mentioned? Yes, well, if you would give my associate the details of the nine human resources managers please, Mr Corboy, when we rise, and also perhaps how she can contact Mr Wallace. We will adjourn to a compulsory conference at 2.15 on Tuesday, 17 February.

ADJOURNED ACCORDINGLY [10.19am]