C2004/4161, Transcript of Proceedings [2004] AIRCTrans 2605 (12 July 2004)

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

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 7656

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DEEGAN

C2004/4161

APPLICATION FOR AN AWARD

Application under section 111(1)(b) of
the Act by Australian Nursing Federation
for an award

MELBOURNE

9.06 AM, WEDNESDAY, 30 JUNE 2004

PN1

THE COMMISSIONER: We all know which application we are referring to I hope? Yes. Could I have the appearances then please.

PN2

MR M. BLACK: I appear on behalf of the Australian Nursing Federation.

PN3

MR P. EBERHARD: I appear on behalf of the Victorian Employers Chamber of Commerce and Industry, and I have a list of those organisations that VECCI represents in the various proceedings.

PN4

MR M. RAHILLY: May it please, Commissioner, pursuant to leave previously granted I appear for respondents, clients of Clare Dewan and Associates.

PN5

THE COMMISSIONER: Are you aware of who that is, Mr Black?

PN6

MR BLACK: Yes, we have that list of employers.

PN7

THE COMMISSIONER: Yes. If people will accept that I am not familiar with these proceedings. I know disputes have been found by another member of the Commission.

PN8

MR RAHILLY: Perhaps I can indicate, Commissioner, that on the file there should be an exhibit CD1 which lists those for whom I appear and I would just seek to add to that one further respondent, that is an organisation known as Millward.

PN9

THE COMMISSIONER: Is that all the appearances in the first matter?

PN10

MS J. WATLING: I appear on behalf of the Australian Industry Group, for companies listed. Would you like me to run through the companies now?

PN11

THE COMMISSIONER: Are there many of them?

PN12

MS WATLING: There is a few. There is nine.

PN13

THE COMMISSIONER: Nine. Yes, would you?

PN14

MS WATLING: Thank you. Lanes Biscuits, South Pacific Tyres, Wills Injury Management, San Ciello Pty Limited, Ventura Industries, BASF, Electrolux, People at Work and Blue Scope Steel. If the Commission pleases.

PN15

THE COMMISSIONER: Thank you, Ms Watling.

PN16

MR S. McCULLOUGH: I appear on behalf of VHIA. I will profess to some degree of uncertainty as to - we represent a number of employees in a number of different matters. There is a list that should appear on the file, Commissioner, correspondence dated 12 May, listing those members of ours who are represented in this and other matters this morning. If the Commission pleases.

PN17

THE COMMISSIONER: Yes. We are at a bit of a loss here at the moment because we don't actually have the dispute finding files, so we are just going to have to deal with it as we go along I think.

PN18

MR BLACK: Yes, Commissioner. We would be agreeable if the employers could make available to the Commission and to the ANF a copy of those lists perhaps after the hearing.

PN19

THE COMMISSIONER: Yes. Do you not have them from the initial proceedings?

PN20

MR BLACK: Yes, we do. They are in the file. I have pulled them out.

PN21

THE COMMISSIONER: So apart from Mr Rahilly, nobody is appearing for any additional parties except those that were listed at the time of the original dispute findings?

PN22

MR McCULLOUGH: I do believe there is one additional party, and I will just seek confirmation from Mr Black. The name of the party is National Imaging Medical Group. My understanding is that originally they received a log of claims at some sites. There have been discussions between our offices in the meantime, and my understanding is that the ANF intends to seek a roping in for the entire business as opposed to just some select sites. My understanding is that that is not disputed.

PN23

THE COMMISSIONER: All right, thank you, Mr McCullough. Yes?

PN24

MR G. FRAUMANO: I seek leave to represent the clients of Jenny Fraumano and Associates that are respondent. I have a list here, Commissioner, if it would be of assistance.

PN25

THE COMMISSIONER: If you would hand it up thank you, Mr Fraumano.

PN26

THE COMMISSIONER: No other appearances on the first matter? Yes, Mr Rahilly?

PN27

MR RAHILLY: Commissioner, I might be able to assist the Commission with a copy of exhibit CD1.

PN28

THE COMMISSIONER: Thank you.

PN29

MR RAHILLY: To which I have added the name Millward.

PN30

THE COMMISSIONER: Yes, Mr Black?

PN31

MR BLACK: Thank you, Commissioner. This is an application for a roping in award to be titled the Nurses Victorian Health Services Roping In Number Award 2004. The application arises from a finding of an industrial dispute found by Senior Deputy President Kaufman, who recorded a finding of industrial dispute in C number 2004/2263 on 13 April 2004. Commissioner, I think it is important to note at this stage that in finding the existence of an industrial dispute pursuant to the Act, his Honour, Senior Deputy President Kaufman, found that there was a dispute between employers of nurses who had received the log of claims and letter of demand from the federation, had not agreed to that dispute, and they employed persons who were eligible to be members of the Australian Nursing Federation, and those employers were based in terms of the log in Victoria and in Tasmania.

PN32

Commissioner, on receipt of the notice of listing of today's matter the Australian Nursing Federation, in accordance with your order for substituted service, provided a copy of the notice of listing and the proposed award to the parties listed in the order for substituted service, and that was made available to those parties on 18 June this year. Commissioner, if I can hand to you now a copy of the award that we seek to have made today.

EXHIBIT #ANF1 DRAFT AWARD

PN33

MR BLACK: Thank you. Commissioner, as I indicated, the award we seek is to be titled the Nurses Victorian Health Services Roping In Number 1 Award of 2004. If I could take you briefly through some of the major provisions of the proposed award. You will note at clause 3, this is an application, the award shall apply to the work and employment in Victoria of registered, enrolled and mothercraft nurses employed by or bound by this award. Clause 4 sets out the parties to be bound by the award. They are the Australian Nursing Federation and the employers listed in schedule A in respect of their employees to which this award applies.

PN34

We seek that in clause 6, Commissioner, that the date and operation of the award shall be on and from today's date for a period of 12 months. Importantly, in clause 7, Commissioner, we set out the parent award, which in this case is the Nurses Victorian Health Services Award 2000. And if I can hand to you for your information, Commissioner, a list of decisions that go to the simplification exercise of all of the awards that are before you this morning, and I simply note that in relation to this award the simplification exercise was carried out by Commissioner Hingley, and there is the decision, for your information, in regard to that matter.

PN35

That concludes my submissions in relation to the terms of the proposed award. The Commission, of course, must make an award in terms consistent with the Commission's current wage fixing principles. If I could hand to you attachment A, which is the extract of the statement of principles.

PN36

THE COMMISSIONER: If you can just refer to the print number on that I won't bother marking it, Mr Black.

PN37

MR BLACK: Commissioner, the principle as it was last reviewed by the Commission on 5 May 2004 in PR002004. If I can ask the Commission to turn to page 6 of that document, which deals with the principle relating to the making of a first award or an extension to an existing award. The Commission must be satisfied in relation to these principles that the award that we are seeking to have made today is consistent with both section 88 and 89 of the Workplace Relations Act. We can advise the Commission that as a result of the simplification exercise we submit that this is a safety net award of this Commission.

PN38

We also note that in October 1998, in decision print Q7661, a five member Full Bench of this Commission determined that the award rates of pay in Nursing Awards in both the South Australian public and private sectors were properly fixed minimum rates of pay. And I can advise the Commission that those rates of pay are expressed throughout all federal Nursing Awards. And finally, Commissioner, in relation to principle 11C 1.DAT~and 11D, which deal with the wage relativities based on award, skill, responsibility and conditions under which the work is performed, I simply repeat my submissions in relation to the simplification exercise.

PN39

Commissioner, they conclude my submissions. We will seek, before we respond to any other matters, to hear from the employers as to any issues they wish to raise. Thank you, Commissioner.

PN40

THE COMMISSIONER: Thank you. Mr Eberhard?

PN41

MR EBERHARD: Commissioner, if I could take the Commission to exhibit ANF1 in these proceedings, and just for the Commission's information is a schedule A, which lists the various employer parties that were in receipt of the proposed roping in. And third from the bottom is my name and, unfortunately, the address is incorrect, and as is the fax number, so VECCI actually didn't receive this information until late last week. We have forwarded this information out to those people who are listed on the proposed respondency list, and asked them to respond to us. Not everyone has done that at this stage because we have simply run out of time.

PN42

But I can indicate that a number of the parties that are sought to be bound to this particular award, and they are Able Care, an organisation called the Australian Quadriplegic Association of Victoria, which was served under Qualcare, At Home Pty Limited, Country Care Pty Limited, Golden Gate Supported Accommodation, and Goulburn Valley Hospice Care Servicing, would all be opposing the making of the roping in award.

PN43

The reasons for that would be, is that the majority of those organisations - I shouldn't say the majority - those organisations fall into either work that would be covered by the Attendant Care Award, where they provide carers in regards to persons who have suffered a form of disability in their home, or they have what is termed a supported residential service, which is, if you would like to say the very basic entry level of the nursing home, hostel type of aged care environment that exists within Victoria.

PN44

So those organisations do not employ nurses and as such would be opposing the making of this particular award. I have had some discussions with Mr Black, and subject to his comments after my comments, we would certainly be seeking a period of time where we can discuss with the people that we represent some concepts in regards to this, as to whether they continue to oppose the making of the roping in award, or whether they would seek to be bound to a different award, and we would ask that the Commission grant us two weeks with regards to those discussions. If the Commission pleases.

PN45

THE COMMISSIONER: Yes, thank you, Mr Eberhard. Mr Rahilly?

PN46

MR RAHILLY: Thank you, Commissioner. In respect of those listed on exhibit CD1 that I have provided to the Commission, with one exception there is no objection to the making of the proposed roping in award. That exception, Commissioner, relates to the classic residences. They would seek to exercise their rights under the Act to oppose the making of the roping in award, and to that end what we would seek is that the Commission issue some directions to the parties to provide the Commission and serve on each other submissions or outlines of submissions and any other material that they seek to rely upon in respect of such an argument, and that the matter be listed for argument at some later date, if that might be convenient to the Commission and the parties.

PN47

THE COMMISSIONER: Thank you, Mr Rahilly. Ms Watling?

PN48

MS WATLING: Thank you, Commissioner. The companies represented oppose the roping in application on the grounds that the work undertaken at these companies is not under the scope of the award. If the Commission pleases, I could deal with each company separately.

PN49

THE COMMISSIONER: Yes, please do.

PN50

MS WATLING: Firstly, Lanes Biscuits. I have been instructed that Lanes Biscuits do not employ persons covered by this award. They employ a manager of safety, security and health, but they do not fall under the scope of this award. I have also been instructed that the company did not receive a log of claims with regard to this application, and the company did employ nurses back in 1995, but they have not employed nurses since this date. Therefore the company instructs me that they wish to be deleted from the roping in application on the grounds that they do not employ people under the scope of this award.

PN51

Secondly, South Pacific Tyres. I have been instructed that South Pacific Tyres do not employ persons covered by this award. Previously they have employed nurses in their health management centre, however, this role has ceased and their medical services are now provided by on site first aid officers, which it is not a requirement to have nursing qualifications. The company also therefore instructs me that they wish to be deleted from the roping in application.

PN52

Thirdly, Wills Injury Management. I have been instructed that Wills Injury Management do not employ persons that fall under the scope of this award. They have one employee who does have a nursing qualification, however, they are not required to have the qualification and do not work under the scope of the award. Their role that they employ in as an injury management consultant, and they submit that that doesn't fall under the scope of this award, and hence wish to be deleted from the roping in application.

PN53

Fourthly, San Ciello Pty Limited. I have been instructed that San Ciello do not employ nurses as per the scope of this award. They do have employees who perform sales functions, selling incontinence products to nursing homes, but they do not perform any nursing related functions whilst in their employment. The job description for this role states the professional health care qualification is desirable but not essential, and the company therefore instructs me that they wish to be deleted from the roping in application.

PN54

Fifthly, Ventura Industries. I have been instructed that Ventura do not employ people under the scope of this award. They have instructed me that they have two contractors that contract to the company to provide occupational health and safety advice, and secondly, the company therefore instructs me that they wish to be deleted from the roping in application.

PN55

And the matter with BASF, I have been instructed that BASF have not employed nursing staff since 1995, and therefore they wish to be deleted from the roping in award on the grounds that the work undertaken does not fall under the scope of the award. The matter with Electrolux, it is my instructions that Electrolux has not employed employees in a nursing capacity since the factory closed down in 1999, and the company instructs me that they wish to be deleted from the roping in application on the grounds that the work undertaken is not under the scope of the award.

PN56

THE COMMISSIONER: Are Electrolux named as a - I don't find Electrolux in my schedule, that is all.

PN57

MS WATLING: Sorry, they are actually named with Tamco/Electrolux Pty Limited.

PN58

THE COMMISSIONER: I see, right.

PN59

MS WATLING: In Glen Waverley. Thank you, Commissioner. People at Work, I have been instructed that People at Work provide temporary maternal and child health nurses to the City of Greater Geelong and pay under the Nurses ANF Victorian Local Government Award 1993. They would submit that the award that is sought to rope them in does not cover the council in which the employees work, and there are no relevant employees under the scope of the award. The award in question does cover work in public sector, it covers the public sector as in terms of schedule B, but under schedule B it doesn't include the City of Greater Geelong, which their employees work in.

PN60

And finally, with regard to Blue Scope Steel, which was previously BHP Hastings, I have been instructed that Blue Scope Steel do not employ employees that would fall under the scope of this award, that they employ an occupational health practitioner, where it is not mandatory to have a nursing degree. The position description, I have been instructed, states that consideration will be given for experience in the medical health field, and qualifications, with example of nursing, medic, ambulance officer, occupational health and other related discipline, the job description for this role states it is desirable but not essential. The company therefore instructs me that they wish to be deleted from the roping in application.

PN61

In conclusion, if the Commission is not inclined to the position of opposing the roping in application, then we would request that directions be issued, and that maybe a site inspection might be necessary to ascertain whether the work done by these employees would fall under the scope of the award. If the Commission pleases.

PN62

THE COMMISSIONER: Yes, thank you, Ms Watling. Mr McCullough?

PN63

MR McCULLOUGH: Commissioner, similar to Mr Eberhard, I have some difficulty in terms of the substituted service. The documents were delivered to a former address of VHIA. I did appreciate the ANF did then send that by facsimile, but it arrived on Monday, which puts us in a little bit of a difficulty, but having regard for that there are a number of the facilities that appear in the document marked ANF1 that do not oppose the roping in, and those facilities are Darmunkle Lodge, Grace of March, Greek Cypriot Elderly Hostel, Summer Care, and South Valley Manor.

PN64

In terms of our members that appear in ANF1 that do oppose the roping in, in each instance it is on the basis that they do not employ nurses, and those are Chelsea Manor, Glen Waverley Lodge, which is a supportive residential service rather than a hostel or a nursing home, and Women's Health in the North. I am mindful that whether or not they are an employer of nurses should be a matter of fact, and on that basis I would propose a similar course to Mr Eberhard, and would appreciate a period of, say two weeks, to confirm as a matter of fact that those places are not employers of nurses. If the Commission pleases.

PN65

THE COMMISSIONER: Yes, thank you, Mr McCullough. Mr Fraumano?

PN66

MR FRAUMANO: If the Commission pleases. Our clients on the list that we provided to you have instructed us that they have no objection to the roping in award.

PN67

THE COMMISSIONER: Thank you, Mr Fraumano. Mr Black?

PN68

MR BLACK: Thank you, Commissioner. Can I say in relation to both the VECCI, and I think in relation to VHIA, that we do not oppose a period of time, perhaps two weeks, to have further discussions with those organisations who indicate that employees should not be properly bound by the roping in award because their classifications would indicate they should be bound by, I understand, a different award. We can have those discussions, I am happy to do that, and I think that needs to happen.

PN69

In relation to the VECCI, the VHIA and the AIG now coming before the Commission and asserting that their clients have no nursing staff who would be properly bound by this award, or no nursing staff at all, and particularly in relation to the AIG, who indicated that all of their clients seek to be removed from the award on the basis that they either have no staff or the staff do different work, or whatever, we simply note that none of these issues were raised before Senior Deputy President Kaufman in relation to his statutory responsibility to determine that yes, there were nursing staff, yes, the employers had received the log and, yes, there was a dispute within the terms of the Act.

PN70

So we don't support the exclusion of those employers, particularly on the basis, Commissioner, that there is no evidence before you in regard to these matters. In relation to Mr Rahilly's client, Classic Residences, we are not sure on what basis they are seeking to be removed from this award, whether that is that they should be in another award or no award, and we would seek some clarification of that point. We are not opposed to putting a written submission to the Commission in relation to those matters.

PN71

I am not sure where this all leaves the Commission in relation to this morning's proceedings, but at the very least we would say that the matters ought to be adjourned for a short period of time to allow some discussions, because I think some of these issues can be resolved. But I want to make it clear to the Commission and to the other parties that we are not prepared to accept without relevant evidence that employees, or nurses should not be covered by an award of this Commission, because there is a requirement that employees be covered by a system of safety net awards, and these are safety net awards, and I think it is incumbent on the employers to demonstrate to the Commission which awards should apply. In the absence of a relevant award then the matter can be taken further.

PN72

So, Commissioner, we would be submitting that, subject to your availability, that the matter be adjourned for a period of, say two weeks, and we would seek directions from you that the employers today provide some relevant material so that we can assess it in discussions with our branch about some of these matters, because they were only raised with us last night and this morning, and we would like some time to work our way through some of those issues. If the Commission pleases.

PN73

THE COMMISSIONER: Yes, thank you, Mr Black. Is there any employer representative who has any difficulty with that course? No. Well, this matter, which is 2004/4161, which will be adjourned, and because I am not from Melbourne I am going to tell you now that it will be adjourned until 2 o'clock on 13 July, because that is the next time I am down here, and I need to do it when I am here rather than make a special trip. Two o'clock on 13 July, nobody is going to have any difficulty with that? Good.

ADJOURNED UNTIL TUESDAY, 13 JULY 2004 [9.33am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ANF1 DRAFT AWARD PN33