BP2002/3818, Transcript of Proceedings [2004] AIRCTrans 4668 (2 December 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 9152

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

BP2002/3818
BP2002/4418

NOTICE OF INITIATION OF BARGAINING
PERIOD

Applications under section 170MI of the Act
Act by ANF - Victorian Branch re initiation
of bargaining period

MELBOURNE

9.35 AM, TUESDAY, 23 NOVEMBER 2004

PN1

MS L. KELLY: I appear for the Australian Nursing Federation.

PN2

MR S. McCULLOUGH: Of VHIA. If I could address, perhaps, subsequently, the issue of who I am or perhaps not appearing for, if the Commission pleases.

PN3

THE COMMISSIONER: Yes, thank you. This matter has been called on at the request of the ANF. In correspondence that was addressed to the Commission dated 16 November and copies to the HSUA, the ANF members and organiser and Mr McCullough of the VHIA. And it does refer to the agreement that was reached in February 2003 and there appears to be no progression to get the general agreement put into a form and certified on behalf of the St Lawrence Nursing Home. Now, the union seeks directions and orders under section 135(2A) so that a ballot can in fact take place.

PN4

Now, Mr McCullough, you indicated yesterday in a conversation that I had with you that St Lawrence were in fact - St Lawrence Nursing Home were in fact a member of the VHIA but that membership appears to have lapsed. You have made several attempts, as I understand it, to contact the nursing home and to no avail.

PN5

MR McCULLOUGH: Yes, Commissioner, at the time that - I think agreement in-principle was reached in December 2002 with the assistance of the Commission as presently constituted. A process then enveloped in which we wrote to all those people whom we were representing at that particular time asking them whether or not they accepted the in-principle agreement. There was also a request for a number of choices under the agreement. The Commission may recall that there was some provisions under that agreement on which employers made particular elections, examples including, whether or not to roll in the nauseous allowance into the wage rate and a number of other choices.

PN6

Upon receipt of a response through a fax back form, the process was then to write to the ANF and outline the particular choices that had been made and then prepare an agreement in those particular terms. Commissioner, as I understand it, the membership with us has lapsed effective from 1 July 2004. I do appreciate and understand that the ANF have made a number of attempts to progress this matter. For our own part we wrote to the nursing home in September 2003. We have forwarded various correspondences that have been sent to us by the ANF.

PN7

We have written to the nursing home on 11 August, 18 August, 16 November and 17 November. With regards to 17 November correspondence I did note from the notice of listing that the contact had not been directed to the nursing home and that was to ensure, to the best of our ability, that that was forwarded on. In each of those correspondences we asked that the nursing home contact our office. It is not uncommon or particularly unusual for memberships to lapse from time to time. There is nothing like an issue such as this to inspire contact with our office but we have received nothing and have no instructions.

PN8

Effectively, that puts me, really, here at the Commission's pleasure. If there any questions that the - - -

PN9

THE COMMISSIONER: Yes, and what a pleasure it is too.

PN10

MR McCULLOUGH: If the Commissioner has any questions for me with regards to the process then certainly I will do my best to assist. If the Commission pleases.

PN11

THE COMMISSIONER: No, thanks, Mr McCullough, I think you have explained it reasonably enough. And as the Commission indicated to you yesterday, it was probably more of a courteous thing and also, to some degree, to ensure that the VHIA weren't badly reflected upon by not appearing. So, Ms Kelly - - -

PN12

MR J. YIANALATOS: My apologies, Commissioner.

PN13

THE COMMISSIONER: That is all right. Ms Kelly, you, on behalf of your organisation, press 135(2A) in that you ask that a secret ballot be conducted. Is that correct?

PN14

MS KELLY: Yes, Commissioner, that is correct, by way of correspondence to you, 16 November and also previously dated 18 August from Mr Paul Gilbert.

PN15

THE COMMISSIONER: Have you had any contact at all with the nursing home?

PN16

MS KELLY: Yes, Commissioner, without going too far back, I can provide sequential events right from the beginning of this process but I will just go back to April of this year where ANF wrote to the employer on 2 April about the ballot dates with an offer also to assist with the ballot and to help explain the agreement to the employees if they required that assistance from the ANF. There was no response to the ANF from that. We wrote again on - sorry, there was no written response but on 27 April the employer, Mr Kincaid contacted the ANF about that letter and the agreement where he stated he had no problem with the terms of the agreement and he agreed there should be a meeting to sort the agreement out and also other employment matters that were a problem to our members at the time but not associated with the agreement.

PN17

The ANF met with the employer to discuss - sorry, ANF met with VHIA to discuss the agreement and the other employment issues. The other employment issues, I understand, were resolved but nothing further happened with the agreement. On 12 July ANF again wrote to Mr Kincaid about progress of the ballot and we have had no response from him to that correspondence. ANF wrote to VHIA on 6 August indicating that we would be making application for a ballot pursuant to section 135(2A) if there was no progress with the agreement.

PN18

It wasn't until this week that ANF learned that St Lawrence were no longer members with VHIA. And the Commission has on file the letter that you referred to, our most recent correspondence, dated 16 November 2004 which I understand VHIA have forwarded to Mr Kincaid and there has been no response to the ANF as a result of that letter going out.

PN19

THE COMMISSIONER: All right, do you have a draft order, Ms Kelly?

PN20

MS KELLY: Yes, Commissioner. The draft order I have got was - that is the only copy I have got here with me.

PN21

THE COMMISSIONER: Was one forwarded to the Commission earlier?

PN22

MS KELLY: Yes, it was sent to the Commission by Mr Gilbert on the date - on the 6th or the - August anyway.

PN23

THE COMMISSIONER: In August?

PN24

MS KELLY: Yes. That letter was from Mr Gilbert.

PN25

THE COMMISSIONER: Okay, what dates do you propose because the dates identified in this one go to 6 September 2004 closing on 13 September.

PN26

!Yes.

PN27

THE COMMISSIONER: I am not sure that we are entitled to have retrospective voting.

PN28

MS KELLY: I don't believe so, Commissioner. Having not read the order prior to coming today, I would have provided an amended one if I had realised that. I would like to see the ballot completed before Christmas if possible. The final pay rise under the agreement is due on 1 February next year.

PN29

THE COMMISSIONER: Right. Okay, I will tell you what I will do, I will give you back the documents. If you could review the dates and possibly give time for the industrial registrar to - well, there has got to be the 14 days notice anyway.

PN30

MS KELLY: Yes, Commissioner.

PN31

THE COMMISSIONER: So, today is the 23rd, if you could provide me with a proper draft order with amended dates and we can look at - if notice is given, say, by the registrar by the end of next week that would take - it takes the ballot up to the 18th, beginning the 18th which would mean, I think, we are running out of time.

PN32

MS KELLY: Look, it may not be feasible within that time. If it goes over into January, so be it.

PN33

THE COMMISSIONER: I just think we are just going to run out of time. We are not going to give sufficient time for the ballot papers to go out - - -

PN34

MS KELLY: Yes.

PN35

THE COMMISSIONER: - - - and in fact, return, before 24 December.

PN36

MS KELLY: I understand. If the date, if it has to conclude later than that, then that is the way it has to be.

PN37

THE COMMISSIONER: If you just leave the space blank in terms of the dates and just provide me with a clean copy of the draft order and make sure that everything is up to date on it other than those dates and I will have a chat to the industrial registrar because obviously we would have to take into account staff that he may have available over the Christmas break and so forth.

PN38

MS KELLY: Yes, I understand.

PN39

THE COMMISSIONER: Yes. So if you do that, I will issue the order once I have had a discussion with the registrar and I will insert the appropriate dates.

PN40

MS KELLY: Right, so I can fax it back this afternoon or via e-mail.

PN41

THE COMMISSIONER: Yes, that will be fine.

PN42

MS KELLY: Yes.

PN43

THE COMMISSIONER: And then I will issue it, as I have said, once I have had a chat to the registrar.

PN44

MS KELLY: All right, thanks, Commissioner.

PN45

THE COMMISSIONER: All right and hopefully it will bring the matter to a conclusion.

PN46

MS KELLY: I hope so.

PN47

THE COMMISSIONER: Okay, thanks, the Commission will stand adjourned.

PN48

MR McCULLOUGH: Thank you.

ADJOURNED INDEFINITELY [4.50pm]