AG2004/5191, Transcript of Proceedings [2004] AIRCTrans 2586 (9 July 2004)

AUSCRIPT PTY LTD
(Administrator Appointed)
ABN 76 082 664 220

Suite 25, Trafalgar Centre 108 Collins St HOBART Tas 7000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 0626

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT LEARY

AG2004/5191

APPLICATION FOR ORDER RELATING TO
TRANSMISSION OF BUSINESS

Application under section 170MBA of the Act
by the Minister Administering the State Service
Act 2000 re extent to which successor employer
is bound by certified agreement

HOBART

9.20 AM, TUESDAY, 29 JUNE 2004

PN1

MR J. MILBOURNE: I appear for the Minister Administering the Tasmanian State Service Act.

PN2

MR T. JACOBSON: I appear on behalf of the Health Services Union of Australia.

PN3

MR N. BLAKE: I appear for the Australian Nursing Federation.

PN4

THE DEPUTY PRESIDENT: Thank you, good morning, Mr Blake.

PN5

MR BLAKE: Good morning.

PN6

THE DEPUTY PRESIDENT: Okay, Mr Milbourne, would you like to speak to the application?

PN7

MR MILBOURNE: Thank you, Deputy President. If I could commence with a little bit of background, I suppose, that the order that we are seeking today results from a project that was commenced some time ago and was referred to as the West Coast Single Auspice Project. This particular project was first mooted in 2002 when the Minister for Health and Human Services announced the funding for a new hospital for the west coast. A review of Queenstown and Strahan Health Services was commissioned to inform the mix and level of services to be provided from the new hospital.

PN8

At the request of the local health service providers this review was expanded to include the entire west coast so that the Queenstown health services is the Rosebery health services is the Zeehan health services and the Strahan health services. In 2003 the final report of that review which was titled The West Coast Clinical Services Review was released. That review contained some 50 recommendations and the one that is relevant and I quote from the particular review:

PN9

The creation of a single management auspice for all health and aged care services on the west coast to improve service co-ordination and integration and better match services to need.

PN10

Following a consultative process with stakeholders that included the West Coast Council, the West Coast Health and Community Service and the Zeehan Medical Union David Llewellyn announced in November 2003 that the Department of Health and Human Services would become the auspice for all health and aged services on the west coast. The effect of this decision is that all services currently provided by the West Coast Health and Community Services and Community Nursing Services provided by the Zeehan Medical Union would transfer to the State Government. The effective date for that is proposed as 1 July 2004.

PN11

This entails both the transfer of funding and staff to the State Government. In January 2004 a steering committee was established to start the process of transferring services and staff to the State Government. The steering committee was responsible for the policy and resourcing decisions affecting the project and for the forming of a project team to undertake all the tasks that must be completed as part of that particular transfer. Since that time in early March 2004 there have been a range of consultative mechanisms that have been put in place, the first of which was a briefing with unions on the project, followed by briefings with staff collectively and inclusive of the unions that are involved, the set up of an industrial consultative committee that involved unions and staff representatives and numerous meetings of that group actually occurred, ongoing consultation with staff both individually and collectively to address any of the concerns that they may have in relation to the proposed transfer.

PN12

Through that particular process the parties developed a memorandum of understanding to facilitate the transfer to the State Government. If I can tender a copy of that particular document to the Commission?

PN13

THE DEPUTY PRESIDENT: Thank you. I will mark that M1.

EXHIBIT #M1 COPY OF MEMORANDUM OF UNDERSTANDING

PN14

MR MILBOURNE: So this document, as you can see, Deputy President, is a document between the department and the union parties to the arrangements. They include the Health Services Union of Australia, the CPSU and the ANF. In this particular matter covering nurses obviously the CPSU are not involved in this particular discussion.

PN15

THE DEPUTY PRESIDENT: No.

PN16

MR MILBOURNE: But the MOU covers both areas of employment. The title is self explanatory, I think. It is rather a long-winded title but it covers exactly what it is. The second dot point in the introduction says that it is an intention of the parties that this memorandum of understanding should form the basis of employment arrangements arising from the transfer of staff from the West Coast Council, the West Coast Health and Community Services and the Zeehan Medical Union to the Department.

PN17

The next dot point goes on to say that it is our intention for all employees to be employed in accordance with the State Service Act. Further to that, that all staff transferring have been provided with a letter of contract that details comprehensively their entitlements that they will receive with the department upon transfer. This includes details of their salary, their classification, their position number, leave entitlements and anything else that is relevant to the particular transfer. It is my understanding that staff and unions have accepted that particular arrangement and individual copies of those letters have gone to all staff.

PN18

THE DEPUTY PRESIDENT: Oh, okay, good.

PN19

MR MILBOURNE: In terms of the entitlements that people actually get it is the intention for nursing employees that transfer to the department to be covered by the Nursing Tasmanian Public Sector Award and the associated EBAs. Currently I think it is the 2001 EBA but shortly we are optimistic that we will have a new EBA to supersede that particular model.

PN20

THE DEPUTY PRESIDENT: Good, we shall await that.

PN21

MR MILBOURNE: The last part of that particular section provides a proviso that employees that are receiving a higher salary than that afforded under the departmental arrangements will be salary maintained at those levels until they catch up so that they will not be disadvantaged in that respect. My understanding is that the majority of employees will actually benefit from the arrangements and receive higher salaries than what they are currently receiving. The commencement date recognises any prior service with the government prior to employees commencing with any of those organisations.

PN22

Point C refers to leave entitlements that will be transferred, annual leave, sick leave, long service leave and rostered days off or accrued days off. The contracted hours of employment will not be altered. Any probationary periods that have already been served with the previous employers will be honoured and not required to be served again. The anniversary dates relating to employment will be maintained as they currently are. Some of the positions require pre employment checks to be undertaken, it is our understanding that in the service of the West Coast Community Health Service that the employees have undergone the pre employment checks so that they will not be required to actually undertake further pre employment checks.

PN23

In relation to flexible working arrangements those matters will be considered and wherever possible honoured in relation to the new employment. Traineeships I don't think apply to nursing personnel so if I skip over that, unless the Commission requires any explanation in that regard.

PN24

THE DEPUTY PRESIDENT: No, that is fine.

PN25

MR MILBOURNE: The consultative mechanisms which I have referred to have focused on individual consultation and an industrial consultative committee where the memorandum of understanding has been developed and agreed and a provision for grievance matters to be dealt with through the award clauses as such. The only other part of the MOU relates to the provision of training where relevant to employees to undertake their new duties and a commitment by the department that that will be provided so - - -

PN26

THE DEPUTY PRESIDENT: So in general terms nothing changes very much for the employees other than their employer; they maintain their current conditions?

PN27

MR MILBOURNE: As much as possible. I think there will be improvements in a lot of cases and I think that will be supported by the unions in any submissions they make.

PN28

THE DEPUTY PRESIDENT: Well, that is even better than what I thought.

PN29

MR MILBOURNE: Yes. Okay.

PN30

THE DEPUTY PRESIDENT: Right, that is good.

PN31

MR MILBOURNE: So I think that just about completes my submission, Deputy President, except to say that we will be seeking an order from the Commission effective from 1 July to waiver the provisions of the transmission of business under I think it is 170MB(2). If the Commission pleases.

PN32

THE DEPUTY PRESIDENT: Thank you. Mr Jacobson?

PN33

MR JACOBSON: Deputy President, just - without going through the agreement, just like to concur with the submissions made by Mr Milbourne on behalf of the Minister. This does finalise what has been a very, very comprehensive process over a couple of years to look at the arrangements for a provision of health services on the west coast and there has been, as Mr Milbourne stated, quite a very - a very, very comprehensive consultative process with us and staff in relation to the - - -

PN34

THE DEPUTY PRESIDENT: How many employees involved?

PN35

MR JACOBSON: I think in terms of permanent employees there are 29 that will be directly appointed to the State Service and the provisions of the State Service Act have been agreed that those people will not have to apply for those positions so we directly select. There are other people tha are temporary employees that go across, I think the total number may be around 50; I am not sure of the exact numbers but it is round about that.

PN36

THE DEPUTY PRESIDENT: That is good. It is more than I would have thought.

PN37

MR JACOBSON: Yes. There are a number of services out there, it doesn't relate so specifically to one particular service provided by council, etcetera. I guess the only point - probably one of the points that I would make in relation to this is if you note in the MOU in terms of transfer and the issue in relation to commencement dates, you will note that originally a number of these employees were in fact employed by the public sector. There was a fairly extensive process undertaken a number of years ago in relation to transferring of services out of the public sector into local government and into the private sector. This is another circumstance and obviously Mersey is another one in the future that will transfer back to the public sector.

PN38

THE DEPUTY PRESIDENT: Yes. What goes around comes around.

PN39

MR JACOBSON: Absolutely, and I guess I did never think that I would see it but certainly have seen it go out and come back again and we are certainly pleased to - and a number of those employees are pleased to come back to the public sector, which will provide them with some certainty in terms of employment security.

PN40

THE DEPUTY PRESIDENT: Yes. Excellent.

PN41

MR JACOBSON: Other than that I concur with Mr Milbourne's submissions.

PN42

THE DEPUTY PRESIDENT: All right, thank you. Mr Blake?

PN43

MR BLAKE: Thank you, Deputy President. Mr Milbourne has tabled the memorandum of understanding which has been defined by our Tasmanian branch arising from discussions with the other unions and the department.

PN44

THE DEPUTY PRESIDENT: Yes.

PN45

MR BLAKE: That document sets out the arrangements for the transfer of employees to the department and on that basis, Deputy President, we would support the application that the provisions of section 170MB not apply in these circumstances and that the employees that are transferred to the department be employed under the terms of the memorandum of understanding, including the relevant industrial instruments. Thank you.

PN46

THE DEPUTY PRESIDENT: Okay, thank you. All right. This is an application by consent to seek an order pursuant to section 170MB(2) to waiver certain provisions now applying to employees of the West Coast Council, West Coast Health and Community Services, Community Nursing Services and all Medical - Zeehan Medical Union. An order will issue and the transfer takes place on 1 July, and that order will take effect from 1 July to cover the transfer of employees and an order will issue and remain in force for a period of six months. That matter is adjourned.

ADJOURNED INDEFINITELY [9.34am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #M1 COPY OF MEMORANDUM OF UNDERSTANDING PN14