AG2004/6958, Transcript of Proceedings [2004] AIRCTrans 4237 (2 November 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

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

TRANSCRIPT OF PROCEEDINGS


O/N 8833

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER CRIBB

AG2004/6958

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the
Act by Pathcare Consulting Pathologists
Pty Ltd, Wanne Pty Ltd and Others for
certification of PathCare Consulting
Pathologists Pty Ltd, Health Services
Union of Australia and Australian
Nursing Federation (Transmission of
Business) Certified Agreement 2004

MELBOURNE

9.33 AM, FRIDAY, 22 OCTOBER 2004

PN1

MR P. EBERHARD: I am from the Victorian Employers Chamber of Commerce and Industry and I appear on behalf of Pathcare Consulting Pathologists Pty Ltd.

PN2

DR R. KELLY: I appear on behalf of the Health Services Union of Australia, and with me is MR J. YIANOULATOS.

PN3

MR B. SORAGHAN: I appear for the ANF, Commissioner.

PN4

THE COMMISSIONER: Mr Eberhard?

PN5

MR EBERHARD: Thanks, Commissioner. Commissioner, this is an application for the certification of an agreement between Pathcare Consulting Pathologists Pty Ltd, Health Services Union of Australia, and the Australia Nursing Federation. It is a transmission of business certified agreement. The Commission would be aware of the history of this matter, and we would now say that the agreement the Commission currently has before it should satisfy all the requirements of the Act and it should contain matters that only pertain to the relationship between the employer and the employees, and as such we would ask that the Commission certify the agreement within its terms, and should the Commission have any questions I would be to answer them. Thank you, Commissioner.

PN6

THE COMMISSIONER: Thank you, Mr Eberhard. Dr Kelly?

PN7

DR KELLY: As Mr Eberhard has said, this agreement reflects the provisions which were in a previous agreement which was voted on by staff. The Electrolux decision in the High Court cast some doubt on two clauses, only in that they refer to agreements being reached between the unions and negotiations having occurred between the unions, that is ANF, HSUA and Pathcare. The agreement was modified. It was circulated again to staff. Everybody had access to the modified agreement. The staff were also circulated with a document setting out the reasons for the voting which needed to be held again.

PN8

We held meetings of our members and ANF members at Pathcare in Geelong to let them know what was happening. We circulated our members electronically about the circumstances. So it was clear that everybody was aware why the agreement was being circulated again. It was - the first vote was a very positive vote in favour of the agreement. The second vote was held, I think on 19 October, and again overwhelmingly endorsed by those who voted. So in the view of the union the agreement meets all the requirements of the Act and has been voted on by the majority of employees.

PN9

THE COMMISSIONER: Thank you, Dr Kelly. Mr Soraghan?

PN10

MR SORAGHAN: I support the submissions of Ms Kelly and Mr Eberhard in respect to the employer. I have a copy of the statutory declaration from the ANF for handing - actually physically handing over to your Associate, Commissioner, if I may, from the ANF Victorian Branch Secretary, Lisa Fitzpatrick. Commissioner, we support the certification of the agreement and it has been agreed between the ANF and St John of God that we are able to record a specific provision relating to the treatment of registered nursing staff who are currently employed by Pathcare.

PN11

The situation as it stands currently, Commissioner, is that the existing Pathcare certified agreement has specific provisions in regards to - it recognises nurses employed as nurses and classified as nurses, so it has the ordinary nursing career structure contained within the existing Pathcare Pathology Enterprise Bargaining Agreement. The consequences of the transmission of business to St John of God is predicated broadly on the basis that all employees will be offered employment, either under the terms of the St John of God Victorian Pathology Enterprise Bargaining Agreement.

PN12

Where there are certain provisions under the Pathcare Agreement that are more generous to those employees they will continue to access them until such time as the St John of God Pathology Agreement, which is due for re-negotiation throughout next year, either catches up or overtakes those provisions. However, there has been a circumstance whereby the St John of God Victorian Pathology Enterprise Bargaining Agreement does not have contained within it any provisions relating to employment of registered nurses, either as Division 1 or Division 2 nurses.

PN13

They are all classified broadly in a pathology collector stream, and those particular classifications would have no application to the registered nursing staff. What is going to happen to the registered nursing staff of Pathcare who transfer their employment to St John of God is that they will have their employment terms and conditions regulated by an agreement that is being negotiated currently in respect to St John of God Victorian hospitals.

PN14

There at five St John of God hospitals at the moment. We are negotiating a certified agreement to have application into the future, and it has been agreed between the parties that the registered nurses who are currently employed by Pathcare who transfer their employment to St John of God will ultimately have their employment regulated by the St John of God Hospitals Enterprise Bargaining Agreement, because that agreement obviously will have appropriate career structure, annual increments, etcetera, for registered nursing staff.

PN15

It was agreed between Ian Oakley from St John of God Corporate in Western Australia, who is overseeing the hospitals enterprise bargaining agreement in Victoria, that we could record that fact here, because there were some difficulties in the letter of offer process for the transmission of employees from Pathcare through to St John of God pathology, and as an abundance of caution I indicated that we would be recording that fact here today. So if it pleases the Commission.

PN16

THE COMMISSIONER: Thank you, Mr Soraghan. Having heard the submissions of the parties, together with the statutory declarations that have been submitted, and taking into account the terms of the agreement, I am satisfied the agreement meets the relevant requirements of the Act and the rules. Consequently I shall certify the agreement from today's date. This matter is now adjourned.

ADJOURNED INDEFINITELY [9.39am]