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Australian Industrial Relations Commission Transcripts |
AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 9328
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
VICE PRESIDENT LAWLER
DEPUTY PRESIDENT IVES
COMMISSIONER EAMES
C2004/6283
APPEAL UNDER SECTION 45 OF THE ACT
BY AUSTRALIAN NURSING FEDERATION
AGAINST THE DECISION [PR953139] OF
SENIOR DEPUTY PRESIDENT KAUFMAN AT
SYDNEY ON 11 NOVEMBER 2004 IN AG2003/7823
MELBOURNE
11.47 AM, FRIDAY, 3 DECEMBER 2004
PN1
MR P. BLAKE: I appear on behalf of the Australian Nursing Federation, together with MR N. BLAKE:
PN2
MR I. DOUGLAS: I seek leave to appear with MR F. TURNER on behalf of Alcheringa Hostel.
PN3
MR R. BUNTING: I appear on behalf of the Minister for Employment and Workplace Relations, intervening in the public interest under section 44 of the Act.
PN4
VICE PRESIDENT LAWLER: Thank you. Is there any objection to Mr Douglas be given leave to appear, Mr Gilbert?
PN5
MR GILBERT: No objection.
PN6
VICE PRESIDENT LAWLER: Yes, leave is granted, Mr Douglas. Mr Gilbert, we have received a letter dated 2 December 2004 addressed to the members of this Full Bench, which purports to be signed by some 36 employees, 75 per cent of possible signatories, expressing what could only be substantial support for the position of the employer and considerable antipathy to the position of the union. Do you have any understanding as to the circumstances in which this letter comes to be written?
PN7
MR GILBERT: Thank you for bringing that to our attention, your Honour. I was unaware of the letter.
PN8
VICE PRESIDENT LAWLER: You haven't seen it?
PN9
MR GILBERT: No. And our submissions in part will go to the circumstances why such a letter might be written.
PN10
VICE PRESIDENT LAWLER: Well, listen, I think we are going to adjourn for 10 minutes to give you an opportunity to read that letter and then to have a discussion with those who are here with you today, and then perhaps with Mr Douglas or other persons who have an interest. But if it be the case that a clear majority of the employees are not supportive of the union's position then there is a real question about the practical utility of proceeding with the appeal, and in particular that raises very real questions about whether this is an appropriate case to grant leave even if error is demonstrated. So, Mr Gilbert, we will adjourn for 10 minutes while you do that.
SHORT ADJOURNMENT [11.50am]
RESUMED [12.10pm]
PN11
VICE PRESIDENT LAWLER: Yes, Mr Gilbert?
PN12
MR GILBERT: Thank you, your Honour, for that opportunity to review the contents of the letter. I have also taken that opportunity to speak to Mr Douglas about our position in relation to it, and from our point of view, and I will go to the details as to why we would seek to continue with the matter today, and we would like to address the Bench about the reasons why, or should I say the reasons as to why we think the Bench shouldn't deviate from the course of hearing the appeal because of that letter.
PN13
VICE PRESIDENT LAWLER: Well, you have an entitlement to press ahead with the appeal. The extent to which it is necessary to give reasons for that will depend upon what Mr Douglas has to say in relation to the question of the discretion to grant or refuse leave.
PN14
MR GILBERT: Thank you, your Honour. I will start off simply by referring to the letter itself. The signatory to the letter is a Mr Graham Muir, or should I say the apparent draftsman of the letter is a Graham Muir, who claims to be the authorised signatory on behalf of the 36 employees listed. I have had some experience of Mr Muir in the past, whereby during proceedings before Commissioner Blair going back at the time we had protected industrial action in place with a view to arriving at this same agreement, we had alleged before Commissioner Blair that Mr Muir had withheld payments owing to our delegate as a result of his views that our industrial action ought not be taking place.
PN15
Now, that was protected industrial action. The matter was referred to Commissioner Blair. Commissioner Blair took what I would describe as a very dim view of those actions, and Mr Rahilly, who is present today, was also present at that hearing. I don't have details with me obviously because I wasn't aware. I had the matter brought to my attention today. The second thing I would say about Mr Muir is he describes himself as the private secretary to the CEO of the facility, and he is also the payroll officer of the facility, and within those confines carries with him some authority within the workplace.
PN16
Putting those issues about Mr Muir aside, the third matter I would say is that the signatories to the attachment refer to a letter dated 1 December, not a letter dated 2 December. We have no way of knowing whether the attached letter is the same letter that they have read or that they sign their name to. Within the document they refer to the ANF as though the ANF were the only union party to the agreement. In fact, there is another union party to the agreement as well, being the Health Services Union, and they have taken part in various aspects of these hearings and appeals that have gone on going back to the very start.
PN17
Just a little bit of history as to perhaps why there might be some anguish between some employees of Alcheringa and the ANF, and we would obviously say it was very much misguided anguish towards us. When we commenced this process of trying to seek an agreement with these aged care facilities we served bargaining periods on some 450 Victoria private and not for profit residential aged care facilities. The employers in those facilities generally speaking appointed someone to represent them.
PN18
In this instance at that time it was Claire Dewan and Associates, and for the purposes of the negotiations Michael Rahilly represented Claire Dewan and Associates. They represented some many, probably well over 100 aged care employers in those discussions, and in December of 2002 we reached an agreement with Mr Rahilly on behalf of the clients of his organisation, of which Alcheringa was one.
PN19
As I have already indicated that did involve taking a measure of protected industrial action including protected industrial action at Alcheringa. Because of the vast number of those agreements there was a considerable delay between when we reached what you might call an in principle agreement, and when that agreement was reduced to writing such that the processes under the Act could be taken and, in fact, the actual written document was provided by the employers representative to the ANF in May of 2003.
PN20
About one month prior to that in April 2003 Alcheringa proposed a restructure of its operations, particularly as they applied in our area of interest, to the way care would be delivered to residents within that facility. Part of that proposal was from a consultant, Ms Ann Rough, who is today here as the chief executive officer of the organisation, but at that time she was a consultant engaged by Alcheringa to undertake a review.
PN21
Part of that review required what in Victoria are known as division two nurses but nationally are known as enrolled nurses to administer medications to clients of the Alcheringa Hostel. In Victoria the practice of enrolled nurses is guided very strongly by the Nurses Board of Victoria, and the Nurses Board of Victoria say that there is no question an enrolled nurse cannot administer medications in that setting. So that was the first problem we had with that proposition.
PN22
The second was that there was legislation in Victoria at that time called the Drugs, Poisons and Controlled Substances Act, and it required that within a health service only certain persons could administer certain medications. We felt that the proposal being put forward by Alcheringa fell foul of both of those matters as the Nurses Board's policies and guidelines and the statutory scheme in the state of Victoria about medication administration, and we told our members not to do it.
PN23
The employers response to that was to terminate those enrolled members, who are all members of the ANF, and all of them were terminated by the employer. Part of the reason for that was that the employer wanted them to call themselves something other than a nurse in the misguided view, in our submission, that that would somehow escape the attention of the Nurses Board and the Drugs and Poisons regulations.
PN24
Due to the termination we took immediate action in the Federal Court, and we were granted interlocutory orders from North J requiring the reinstatement of those employees, and also an order that they not be directed to administer medications pending the determination of the matter by the Federal Court. That determination was ultimately made by Ryan J, and Ryan J found that the actions of - well, that Alcheringa conceded that its actions constituted multiple breaches of the Workplace Relations Act in terms of the freedom of association provisions at Part 10A, and they were also penalised for that, and also that the direction given to the division two nurses fell foul of the Victorian Drugs, Poisons and Controlled Substances regulations, and as a consequence that would have put the employer in breach of those regulations.
PN25
So up to that point you can imagine that our relationship wasn't perhaps as good as it was at the outset with the employer, but nevertheless they were actions we felt we had to take. As I have indicated, we received the agreement from Alcheringa in May via e-mail from Mr Rahilly's organisation, and between May and August no apparent steps were taken by Alcheringa in accordance with section 170LJ. We didn't single Alcheringa out. We have done it before and we have done it since, that if the employer doesn't take active steps themselves we have sought to get permission from the employer in one form or another to take those steps ourselves.
PN26
And that is, in fact, what occurred with Alcheringa, is that our LJ agreement, we notified them that we would be coming up to conduct the explanation meetings to distribute the agreement and to conduct a ballot and to make application for the agreement before the Commission, and we did each of those things. The LJ agreement in our view remains an agreement that we seek to see certified. Mr Muir's letter refers to the section 170LK agreement. The 170LK agreement was an agreement organised by the employer in the event that our LJ agreement was not certified.
PN27
It was based, in our submission, very largely on the agreement that the ANF and the HSU have reached with Alcheringa, and its major differences for the purposes of today were that it allowed the employer to direct employees to do certain things that were aimed, in our view, at enabling the employer again to direct those division two nurses to administer medications.
PN28
The LK agreement, in terms of its broad terms and conditions of employment, is very much comparable to and based upon the agreement reached between the ANF and the HSU and Alcheringa, and the Australian Workplace Agreements that Mr Muir refers to are then themselves based on the LK agreement that is based on the LJ agreement. The difference other than the one I have already identified is the expiry date of those relevant documents.
PN29
Our agreement, God bless it, is due to expire in September of next year. The LK agreement would expire three years from the date of its certification, and the AWAs would operate from three years from their date of registration with the Employment Advocate. So we say that there are substantial differences in practice because of the expiry dates of those agreements. We are free, were the LJ agreement to be certified, to seek a new agreement to replace that agreement. In fact, negotiations are due to start in March of next year.
PN30
So there are significant differences, but the employees may well be unaware of those because the opportunity hasn't arisen for us to explain to them about the Australian Workplace Agreements, and in respect to the LK agreement it was only ever going to be operative in the event the LJ agreement was not certified. So we haven't had to explain to them about the issues about the expiry date of the LK agreement. Just returning to the letter for a moment, we don't think - - -
PN31
DEPUTY PRESIDENT IVES: The LK agreement, Mr Gilbert, was never the subject of a vote as far as you're - - -
PN32
MR GILBERT: Yes, it has been the subject of a vote, your Honour. That was a vote in which the employer actively took the steps themselves rather than leaving it to the union to take those steps, and I think it was voted on in favour by the employees, but as part of the explanation of that agreement they were advised that it would not be proceeded with unless the LJ agreement did not proceed to certification.
PN33
Given that the employees signatories of this agreement are not here, as I have indicated they are not available for cross-examination and we don't know whether or not it is the same letter that they have put their signature to that Mr Muir has provided today. We say that Mr Muir is in a position of some authority in the workplace.
PN34
Given the picture I have painted about a bit of a history of the matter you can perhaps understand why the employees, having had their wage increases withheld because of the delays in the certification of the agreement, have now seen an opportunity to have that back pay provided to them before Christmas by way of the Australian Workplace Agreements.
PN35
They have each been provided with a letter that indicates exactly how much money they are owed, and in some cases that we're aware of that is in the many thousands of dollars. That is the same back pay they would be owed if the LJ agreement was certified by the Commission. But they don't necessarily see it that way. They see an offer from the employer of money up front, available right now on 15 December if they approve the AWA.
PN36
We say that to the extent they're concerned about their back pay that is a misguided concern, because if the Bench were minded to at the end of the day quash the decision of Senior Deputy President Kaufman and certify the agreement they would then be entitled to that same amount of money because the wage clauses are mirrored in the LJ agreement, the LK agreement and the AWAs. So they're actually financially going to be in the same boat except for the expiry date.
PN37
So in my submission the letter is largely misguided for those reasons, and in the broader public interest aspect of it, as I have indicated these agreements were reached in consultation between, or negotiation between the ANF and various employer representatives. The result of that was an in principle agreement that was then applied largely in that form to each of the 300-odd employers who were represented by those representatives.
PN38
Each of those agreements contains a provision very similar if not the same in terms of that noticeboard provision. The vast majority of those agreements are now certified, in fact, all bar about two. And if we are not to proceed with the appeal then the consequences of that would be that that clause in that agreement would be potentially to put the whole of those 350, 400-odd agreements at risk that we have already certified.
PN39
VICE PRESIDENT LAWLER: Although the realistic prospect is that the validation legislation will be passed by the parliament in such a fashion as at least would save those agreements.
PN40
MR GILBERT: That is certainly the understanding that we have, although we understand, and I don't know why necessarily, but at this stage the ALP have not agreed to support those amendments in the Senate, and that may well delay that matter some time. And so that is something that we perceive will happy at some stage, but we have no guarantee will happen.
PN41
And the consequence of that, it would upset the entire employment regime of nurses, personal care workers, cooks, cleaners, drivers, etcetera, right throughout the private aged care industry in Victoria were the noticeboard clause to stand as it is currently being claimed to be in contravention of section 170LI. It also raises serious concerns about what constitute reasonable steps under section 170LJ(3).
PN42
VICE PRESIDENT LAWLER: Okay, Mr Gilbert, you should get cracking with the substantive arguments. Where is the error?
PN43
MR GILBERT: Thank you, your Honour.
PN44
VICE PRESIDENT LAWLER: Well, the question of leave has to be addressed, but I suspect that we will hear from Mr Douglas at some length about that.
PN45
MR DOUGLAS: Your Honour, could I just say a couple of things about the letter at this point if I may. I don't wish to argue anything substantive in relation to it, your Honour. I will submit in due course that the letter should be received by the Commission and taken at face value and acted upon. Your Honour, I, my learned friend Mr Turner and my instructing solicitors had nothing to do with the preparation of this letter or the fact that it has been directed to this Full Bench.
PN46
I am instructed that the employer is in exactly the same position, it had nothing to do with the drafting, the preparation or the forwarding of this letter to members of the Bench. I would wish at an appropriate stage to call Ann Rough briefly to testify to that position, and I would submit to the Commission that Mr Muir be provided with an opportunity to come to the Commission to give evidence with respect to the letter.
PN47
I am aware that it would take him at least four hours to travel here, and what I would suggest to the Commission is that the Commission hears the argument today and then appoints one of the members of the Bench to sit tomorrow to take evidence from Mr Muir as to this letter.
PN48
VICE PRESIDENT LAWLER: Is there any reason why Mr Muir couldn't come to Melbourne this afternoon?
PN49
MR DOUGLAS: No. He could come to Melbourne this afternoon, your Honour, but he wouldn't be here I think - - -
PN50
VICE PRESIDENT LAWLER: No, I understand until quite late.
PN51
MR DOUGLAS: Yes. It could be done this evening certainly.
PN52
VICE PRESIDENT LAWLER: Well, if you could have your instructing solicitor contact Mr Muir now we will sit late as necessary if he is able to come today. Alternatively, his evidence could be taken by telephone.
PN53
MR DOUGLAS: Yes, your Honour. We will simply say to him there is an opportunity for you, Mr Muir, to come and give evidence to the Bench about the letter. We will put it in that neutral way.
PN54
VICE PRESIDENT LAWLER: Or alternatively, subject to whatever Mr Gilbert and Mr Bunting have to say, it could be done by telephone.
PN55
MR DOUGLAS: Yes, your Honour.
PN56
VICE PRESIDENT LAWLER: Mr Gilbert, do you have any objection to the letter being marked as an exhibit on the application for leave to appeal?
PN57
PN58
VICE PRESIDENT LAWLER: Yes, Mr Gilbert, the errors?
PN59
MR GILBERT: Thank you, your Honour. Does your Honour require evidence as to the effect of service given the people here today? I can provide it for the record should you require.
PN60
VICE PRESIDENT LAWLER: No. I don't think there is any formal point taken in that nature.
PN61
MR GILBERT: No. We would also have a book providing the cases to the Commission that we will be referring to today. Are you all equipped with a copy of the agreement? I do have copies here for your convenience should you wish.
PN62
VICE PRESIDENT LAWLER: Well, there is no Appeal book, and that is because of the peculiar circumstances in which this matter has been listed at short notice. Mr Bunting, do you have copies of the agreement?
PN63
MR BUNTING: I do.
PN64
VICE PRESIDENT LAWLER: Thank you. I have the original file here as well with the original exhibits and the transcript.
PN65
MR GILBERT: The first matter that I would like to take the Bench to is something I am sure the Bench is familiar with, and that is section 170L and section 170LA of the Workplace Relations Act, and just to briefly describe that.
PN66
VICE PRESIDENT LAWLER: Mr Gilbert, just before you go there, do you challenge any of the factual findings, the underlying factual findings in his Honour's decision?
PN67
MR GILBERT: We do, yes.
PN68
VICE PRESIDENT LAWLER: Which ones do you challenge?
PN69
MR GILBERT: This would go particularly to paragraph five of the grounds of appeal that we have indicated where we say that contrary to the evidence not all relevant employees were given the opportunity.
PN70
VICE PRESIDENT LAWLER: No, sorry, it is the underlying finding that I am concerned about. His Honour, for example, described what Ms Higgs did in terms of posting notices and making copies of the agreements available. Do you challenge any of those findings?
PN71
MR GILBERT: I don't believe so, no.
PN72
VICE PRESIDENT LAWLER: Fine. So it is a question of what is the correct mixed finding of fact and law that is to be drawn from those underlying findings of fact which you don't challenge?
PN73
MR GILBERT: That is correct.
PN74
VICE PRESIDENT LAWLER: Fine, thank you.
PN75
MR GILBERT: Again, just referring back to section 170L and section 170LA, objects of the Act. The object of this part is to facilitate the making and certifying by the Commission of certain agreements, particularly at the level of single business or part of a single business, and further objects of the Act, the Commission must as far as practicable perform its functions under this part in a way that furthers the objects of the Act and in particular the object of this part.
PN76
We say that that should guide the Commission in the way that it operates when it has an application before it, that is, that its role at all times whilst an application is before it is to facilitate the making and certifying of agreements. It should be the primary guide when considering the evidence before the Commission in relation to an application for certification of an agreement.
PN77
If I can then refer to the noticeboard matter. Sorry, firstly, that as your Honour distilled I think the other day, that there were essentially three matters that needed to be addressed, and we will be making our submissions in an order having regard to that. The first matter that we will address is the noticeboard matter and the relevance of that to section 170LI. We will then proceed to speak to section 170LJ(3)(a) and similarly for LJ(3)(b) and LT(5).
PN78
And in the event we happen to not have the support of the Bench on one or more of those matters then we would wish to also speak to the other options that were open to his Honour if he had formed the view that we had fallen foul of one of those provisions, and also as to what is available to this Full Bench in the same circumstance. As indicated in respect to the noticeboard, I will move into there firstly, in tab two of the folder that is originally provided with the Appeal - is there a convenient name for that first folder that is provided with the grounds of appeal?
PN79
VICE PRESIDENT LAWLER: That is the folder you have just handed up, the folder of cases?
PN80
MR GILBERT: No. The folder that has the grounds of appeal and transcript and related matters on it.
PN81
VICE PRESIDENT LAWLER: We don't have such a file.
PN82
MR GILBERT: The lodgment of the appeal was actually as part of the file.
PN83
VICE PRESIDENT LAWLER: What you're suggesting, that you have lodged an Appeal book with - - -
PN84
MR GILBERT: Yes, I thought I had. And then when you suggested that you didn't have an Appeal book I felt I must have been somewhere misguided. That is, in fact, one of the stamped copies with me here today, stamped by the Commission.
PN85
VICE PRESIDENT LAWLER: Can I have a look at that stamped copy, and we will make some inquiries. At the moment the members of the Bench do not have any such folder.
PN86
MR GILBERT: I can see relevant copies of it in other places.
PN87
VICE PRESIDENT LAWLER: My exceptionally efficient associate is looking nonplussed. I suspect there has been some problem in the Registry.
PN88
MR GILBERT: They would have actually had to extract from there the - - -
PN89
VICE PRESIDENT LAWLER: Did you file three copies of that?
PN90
MR GILBERT: Yes.
PN91
VICE PRESIDENT LAWLER: Okay, we will make some inquiries in the Registry now.
PN92
MR GILBERT: That is necessarily going to make life slightly awkward, but I can bat on.
PN93
VICE PRESIDENT LAWLER: Yes, please do.
PN94
MR GILBERT: The first case we wish to refer to is the Archer High Court case, and I have a copy of that in the folder that you don't have, the Appeal book.
PN95
DEPUTY PRESIDENT IVES: Well, that is quite handy then.
PN96
MR GILBERT: Yes, it is a great starting point, but I don't know that it necessarily holds matters up. His Honour, in respect to the Archer matter, we obviously relied on Archer in part in respect to saying that the noticeboard matter was a matter that pertained to the employment relationship, and we say it is still good law in respect to matters such as noticeboards. And at 216 of Archer, which will be in tab four of the Appeal book:
PN97
Claim 71 asks that the officer of the union shall have power to inspect the work room on due notice with right of access to the wages book or time sheet ...(reads)... shall be unable to carry out its functions effectively.
PN98
His Honour referred to that as a compendious claim and that therefore Archer did not apply. The only concession we would say about Archer is the status of registered employee organisations under the Act has no doubt changed in that time, but we say Archer is still good law in respect to the provision of noticeboards being a matter pertaining to the employer/employee relationship, and that to the extent his Honour distinguished it on the basis of the claim that it was compendious, that we say he erred.
PN99
It was always open in Archer to have divided the matters up and dealt with them differently, but they were all deemed to be matters that pertained to the relationship - - -
PN100
VICE PRESIDENT LAWLER: And you would say on the reasoning of the High Court in Electrolux, if any substantive component in the compendious clause did not pertain then the whole clause in the claim was tainted?
PN101
MR GILBERT: Well, either that or it became ancillary, incidental or machinery.
PN102
VICE PRESIDENT LAWLER: Sorry, alternatively, it was not open to the Court to make an award that extended to those components in the compendious claim which did not pertain.
PN103
MR GILBERT: Yes, we would say that, and that seems to be the practice of the Commission in more recent times.
PN104
VICE PRESIDENT LAWLER: Yes.
PN105
MR GILBERT: Secondly, we would go to his Honour, Vice President Ross' decision in Ballantyne.
PN106
DEPUTY PRESIDENT IVES: Sorry, before you leave Archer, Mr Gilbert, the Senior Deputy President at the time made reference to part of Archer in that he actually quotes a section from Archer which is as part of a sentence saying "As I understand, union notices of meetings etcetera," which seems to imply that he is talking about the restriction that he apparently sees placed upon union noticeboards within Archer. And he then goes on to say in the following paragraph that in this instance he sees no such limitation.
PN107
MR GILBERT: Well, again, if that was a distinction worth drawing - I am not sure but bound to be a word for this - but there is an etcetera symbol at the end of the sentence that I referred to in Archer "As I understand, union notices of meetings etcetera." And the evidence that we will present in respect to noticeboard will show what the general use of a noticeboard has been in practical terms in the workplace. So his Honour suggested in various times during the hearing that we could have used it for example to allow us to post a notice saying that nuclear ships were going to arrive in Port Phillip Bay, and that that might somehow be deemed to be unrelated to the workplace.
PN108
I might say there has been no evidence that the noticeboards have ever been used for that, and there will be evidence that the noticeboards have been used by our job rep or our delegate at the workplace in respect to the kind of matters that do pertain to the relationship of Alcheringa and its employees on numerous occasions, and that his Honour was aware of that given his ongoing involvement in the original application and the subsequent remittal back to him.
PN109
So we say that the etcetera could be read as broadly as one wants to read it in the Archer matter, and that to the extent his Honour disregarded the etcetera, then we think that unduly distinguished Archer on grounds that simply weren't there to him.
PN110
VICE PRESIDENT LAWLER: The folders have been found.
PN111
MR GILBERT: While those are being distributed I would ask the Bench not to draw any particular conclusions to why Archer was in pink when all other things are in white. We don't hold a large library at work and I had to have the document faxed to me. Our fax machine generates pink copies, and when I took the document to a printer to organise the documents in a file they very generously ensured that each of the copies of Archer were also pink, which was probably unnecessary and we probably paid extra for it.
PN112
MR DOUGLAS: It's probably appropriate though.
PN113
DEPUTY PRESIDENT IVES: The significance of the colour might have diminished over the years.
PN114
MR GILBERT: Yes, I think it probably has. If I could now take the Bench to the Ballantyne decision. Well, firstly I would take the Bench to the copy of the agreement and the provision in the agreement relating to noticeboards, and that is at clause 37, which is page 22 of the document:
PN115
The union's party to this agreement may have reasonable access to noticeboards at the employer's premises to place union notices. Where possible these noticeboards shall be located in the staff room. No such notices shall be placed in residential or public areas of the employer's facility.
PN116
A similar clause was considered by Vice President Ross in Ballantyne, which is at tab five of the Appeal book. Firstly, at paragraph 57, which on the Commission's copy is at page seven, his Honour Vice President Ross refers to the judgment of McHugh J in Electrolux, which is from my memory referring to, or, in fact, it says so. But what his Honour actually said is quite different from the gloss the AI Group seeks to place on the matter. At paragraph 61 of the judgment his Honour makes reference to the Court's judgment in Alcan and says that in that case - - -
PN117
VICE PRESIDENT LAWLER: You're reading from paragraph?
PN118
MR GILBERT: 57 on page seven of 42 if you look up the top of the document. And I am quoting from the quote in italics within the judgment of Vice President Ross. The Court said that:
PN119
A claim directed to strengthening the position of a union or union members is not without more a matter pertaining to the employment relationship involving employers as such and employees as such.
PN120
And to the extent an emphasis has been added we would also add that emphasis to the words without more. There is no doubt that there will be arguments raised that the noticeboard clause is solely for the purposes of the union and its members rather than Alcheringa and its employees, and clearly it is possible to say that the noticeboard clause could be used for matters that may not pertain and matters that will pertain.
PN121
However, to suggest that it is somehow unlimited in its operation would be to ignore the industrial practicality that if we were to, for example, put a notice up saying that we thought Alcheringa was an inappropriate employer for nurses to work at, you could reasonably assume that that notice would not be entitled to be placed on that noticeboard. It would be removed and we would probably have little option but to accept that. And in practice it is simply not being used for the sort of purposes other than to explain to employees what their industrial entitlements are in relation to the agreement and the award and when we are coming to visit and related matters.
PN122
The union noticeboard provision that Vice President Ross considered is at paragraph 146 which is on page 21 of 42. Clause 41.3 of the agreement deals with the obligation of the employer to provide a noticeboard for the use of the union. It states, 41.3, noticeboard:
PN123
The employer will provide a lockable glass fronted noticeboard for the use of the union delegate or representative of the state secretary of the union.
PN124
The clause therefore requires that a specific noticeboard be provided for the use of the union, and in our provision it is simply that we seek space on the existing noticeboards as has been, in my submission, a practice for many years, and nor do we seek the security of a lockable glass fronted board. And the other difference if, indeed, there is a substantial difference, is reference to a union delegate or representative of the state secretary, while our clause refers to the unions having reasonable access to noticeboards.
PN125
I don't think there is any distinction to be drawn between referring to the union in our clause and the union delegate or representative of the state secretary of the union in the one considered by Vice President Ross. In simple terms the union is the secretary of the union and the representatives of the secretary of the union and members of the union and delegates of the union. It is simply illogical to think that the union as an entity could place notices on a noticeboard. Clearly it is going to be a representative of the union that does that, and there will be evidence that it is in practice at Alcheringa a delegate of the union who has been doing that.
PN126
His Honour Vice President Ross continued at paragraph 148 to say that he was satisfied that that clause is incidental or ancillary to matters which pertain to the requisite relationship. Delegates and other representatives of the union have a direct role ensuring that there is compliance with the terms of the agreement, provisions directed to the maintenance of an effective settlement and the prevention of further disputes may be included in a certified agreement.
PN127
Further, delegates and union representatives play an important role in the procedures in the agreement for the avoidance of industrial disputes, see clause 11, and in relation to the introduction of change see clause 10. And then finally I note that:
PN128
My conclusion in respect to this provision is supported by the judgment of Merkel J in Electrolux v AWU.
PN129
At paragraph 166 of the Ballantyne decision, and I won't read the whole provision out, but it provides the dispute settlement provision within the Ballantyne's agreement and for example it uses the words:
PN130
The employees concerned will first meet and confer with their immediate supervisor. The employees may appoint another person to act on their behalf including a shop steward or delegate of the union. The employee may invite a union official to be involved in discussions.
PN131
And at 11.1.3:
PN132
The employee may invite a more senior union official to be involved in the discussions.
PN133
If I just return back to his Honour's decision that is under appeal, at tab two. At paragraphs 35 and 36 of that decision his Honour distinguishes the Ballantyne's decision in these words:
PN134
There is nothing in the Alcheringa clause to suggest that the clause is limited to facilitating the posting of union information to ensuring observance of the agreement ...(reads)... a clause so trivial that it should be disregarded as significant, it creates a right and it imposes an obligation.
PN135
If I return to the agreement subject to the application, we would say that his findings that the role of the delegate is limited in the way that is described is not correct, and that to the extent that the agreement being an agreement between the unions and the employer allows for a person to be represented by other than a union delegate is, in fact, a necessity for agreements to be certified in this day and age and ought not detract from the provision in any way.
PN136
If I could take you firstly to clause 17 of the Alcheringa agreement. Clause 17 is headed work load management, and it provides that:
PN137
The employer is committed to ensuring that staffing levels are appropriate, thus ensuring the delivery of quality resident care in keeping with the accreditation principles which take into account the level of care appropriate for the assessed needs of the resident.
PN138
And 17.2:
PN139
Should any employee feel the work loads are unreasonably heavy on a regular basis then they have a responsibility to discuss their concerns with the manager. If appropriate action is not taken to address the work load issues the employee may utilise the dispute settlement procedure in this agreement.
PN140
If I can go to the dispute settlement procedure in this agreement and only briefly touch on - I am told it is clause 35 and I am working my way there. The dispute settlement procedure, and again I won't quote the whole provision, but we say it is singularly - - -
PN141
VICE PRESIDENT LAWLER: 35.2?
PN142
MR GILBERT: 35.2:
PN143
In the first instance the employee will attempt to resolve the grievance with his or her supervisor, local ANF or HSUA or other representative will be present if desired by either party.
PN144
And it goes on in the same way to refer to the senior local or state branch union or other representative, and it is in large part indistinguishable from the dispute settlement procedure in Ballantyne, and there is no reason to treat the dispute settlement procedure in this agreement in any way different from the dispute settlement procedure in the Ballantyne agreement considered by Vice President Ross.
PN145
There are other provisions in this agreement that also go to the provisions relating to the role of union delegates. Clause 36, the following provision, is the disciplinary procedure. This was a provision that was contained in awards but due to award simplification was no longer available, and it was imported into agreements in the form that it was previously contained in the award save and except for the requirement that employees be able to be represented by not only their local union delegate or other but also another representative. So within the disciplinary procedure provisions it is also at 36.6:
PN146
During all steps in a disciplinary procedure the employee has the right to representation of his or her choice. And in the normal industrial relations practice as in our industry that involves the local union delegate or the local union delegate and the relevant organiser for the workplace.
PN147
And also at clause 38, the introduction of change provision, if I go to the penultimate sentence in the first paragraph:
PN148
The employee may bring a representative including a union representative to any meeting. The employee will be advised of this in writing by the employer.
PN149
So again union representatives are recognised within the terms of the agreement. And at clause eight of the agreement the no further claims provision places particular responsibilities on individual employees, union delegates and the union itself not to take certain actions during the course of that agreement and also to commence re-negotiation of the agreement at 8.3 some six months prior to its nominal expiry date.
PN150
Our role in communicating with members will become abundantly clear when I come to some witness evidence that was given during the course of the proceedings and also to matters that were brought to his Honour's attention during the original application by the employer.
PN151
VICE PRESIDENT LAWLER: Mr Gilbert, why is the way in which the Board has used historically in practice relevant? Why isn't it what the clause admits as a matter of proper construction is the only thing that is relevant?
PN152
MR GILBERT: Well, we would say that it needs to be considered in its context, which includes having regard to his Honour's position when considering the clause that he had ample evidence before and as to what the practical use of the noticeboard was, particularly in the situation leading up to the application before him, and also that as Vice President Ross b
PN153
VICE PRESIDENT LAWLER: The clause doesn't say the employer will provide a noticeboard that will be used in accordance with the manner in which it has been used in the past. It says the employer will provide the noticeboard, full stop.
PN154
MR GILBERT: I think if I was negotiating or drafting the agreement now I would draft it differently having regard to that. However, I don't think - if I go back to the quote from Vice President from Alcan, which itself from memory is a quote of another High Court decision, but it says without more it can't pertain. What we say is this clause has more to it than simply what you read in front of you.
PN155
Well, even if you took it on its literal wording in front of you now, it allows for the union or its delegates or members to place notices on a noticeboard that relate to the employment relationship. It may allow other things to happen, and in practice I say it hasn't, but it may allow other things to happen, but that is not of itself a reason to say a noticeboard doesn't pertain, because it provides for more than just the purposes that the union may use to put up a notice that doesn't relate to the employment relationship. It also is used for notices that do relate or do pertain to the employment relationship, and there will be evidence of that.
PN156
DEPUTY PRESIDENT IVES: Are you saying that when considered as a whole it pertains are you, Mr Gilbert?
PN157
MR GILBERT: That is correct. I would say as a comparison if you like - - -
PN158
DEPUTY PRESIDENT IVES: That can be a dangerous argument I would have thought.
PN159
MR GILBERT: As a comparison if you like, if you had a provision that said the employer must provide a pay slip - - -
PN160
VICE PRESIDENT LAWLER: I thought you were going to say, Mr Gilbert, the word reasonable in the first line of clause 37 meant that this clause had to be read narrowly with a view to upholding validity of the agreement if possible, and that reasonable access to the noticeboard would mean the posting only of notices that dealt with matters that pertain to the relationship.
PN161
MR GILBERT: Well, I guess that was the impression or the implication I was making before about not being able to put up notices that were for example offensive, but that would not be considered reasonable access. And presumably if the employer so felt, nor would a notice about nuclear warships visiting Port Phillip Bay. Because it only gives us a reasonable right, not one to be used unreasonably. And reasonable will be an issue that comes up a couple of times yet I think.
PN162
VICE PRESIDENT LAWLER: So in summary the area you seek to identify in his Honour's reasoning is an erroneous distinguishing of Ballantyne?
PN163
MR GILBERT: That is correct, in that there is no distinguishable difference between the provisions in our agreement and in Ballantyne, and to the extent his Honour distinguishes them we say is wrong because the evidence in the terms of the agreement and in the matters that were before him didn't warrant such a conclusion. And nor did he consider the other provisions in the agreement that interact with the dispute settlement procedure that also create a role for union delegates, and that therefore the - - -
PN164
VICE PRESIDENT LAWLER: I apprehend that Mr Douglas will say that Ballantyne is wrong in this respect, but you can deal with that in reply.
PN165
MR GILBERT: Indeed, he may.
PN166
VICE PRESIDENT LAWLER: Is there anything further you would want to say on the issue of the noticeboard?
PN167
MR GILBERT: The difficulty I have, your Honour, is that there was a lot of witness evidence that went to the use of the noticeboard in the practical sense in the workplace. And I can sense that your time frame won't allow me to proceed to go to that.
PN168
VICE PRESIDENT LAWLER: No. You need to be able to run your appeal effectively, and if you wish to go to it then you should go to it. It is not my time frame, it is the parties time frame. This matter has been listed today at short notice without directions for the exchange of written submissions because of the communication that came from your union, and to seek to accommodate the apparently reasonable concerns, and there was no dissent from the proposal to list the matter today from the employer when the matter was listed for directions.
PN169
And so I am concerned that it would be desirable for us to try and finish the appeal today, and therefore the cutting of costs, to facilitate a quicker rather than a slower conclusion is better. Is there any reason why you couldn't do that by way of a written schedule of evidence which you send in or perhaps give to us at 2 o'clock?
PN170
MR GILBERT: A written schedule as in?
PN171
VICE PRESIDENT LAWLER: Sorry, just a list of the references.
PN172
MR GILBERT: Of the paragraph references in the transcript to which I would be referring rather than referring to them today?
PN173
VICE PRESIDENT LAWLER: Well, you can take your own course, but if you give us a list of references you can be assured that they will be read.
PN174
MR GILBERT: Yes. No, I a quite content with that course, although whether I can achieve that by 2 o'clock, given that you haven't indicated an intention to adjourn at this stage.
PN175
VICE PRESIDENT LAWLER: Or alternatively next week. Now, you can assume that we want to adjourn to have some lunch. We have been doing other things this morning as well.
PN176
MR GILBERT: Yes, I am aware of that and I appreciate that. So how would you like to proceed? Do you want to proceed now obviously with an abbreviated version of what I was going to do
PN177
VICE PRESIDENT LAWLER: First of all, apart from that evidence are there other arguments you would want to put on the noticeboard part of the appeal?
PN178
MR GILBERT: No. The only additional point that I was going to make, and again it comes up to varying degrees, is that the context of the workplaces in which the ANF represents employees in that sector, it is a 24 hour seven day a week industry, it is an industry where there is limited access to large parts of where employees work because they are private residential areas that it may not be appropriate for union organisers to walk around in, and a major way in which the ANF has traditionally and wishes to continue to communicate with employees and our delegates communicate with members at the workplace is by the utilisation of that noticeboard.
PN179
And it may well be peculiar to our industry or maybe prisons and things suffer a similar fate, but it is a particular issue in our industry that this is a source of communication.
PN180
VICE PRESIDENT LAWLER: That is of peculiar importance to the remaining grounds of appeal, what you have just identified, and to the extent that there is evidence that goes to that certainly it would be desirable for us to have references to that evidence. Can I say - this is for my own part and I don't speak on behalf of the other members of the Bench - so far as the noticeboard clause is concerned I do not see presently how the way in which it has, in fact, been used in the past has any major bearing on the issue of whether or not the clause pertains.
PN181
MR GILBERT: It may have a bearing on our final point about what other options were open to his Honour.
PN182
VICE PRESIDENT LAWLER: Yes.
PN183
MR GILBERT: Well, again, that can be addressed in the way you have described.
PN184
VICE PRESIDENT LAWLER: Yes. Well, Mr Gilbert, if you are not unhappy with the course, if you could turn your mind to giving us a list of references into the evidence that you would like us to consider, and you can be assured that they will be considered. That doesn't necessarily need to be completed today. You could give us a supplementary list tomorrow or the next day or Monday or whatever. But if it is possible to have it done today so much the better. Mr Douglas, you wanted to say something?
PN185
MR DOUGLAS: I just want to say that Mr Muir is on his way and should be available by 5 o'clock.
PN186
VICE PRESIDENT LAWLER: Thank you, Mr Douglas.
PN187
MR GILBERT: And can I do one thing before that happens. In order for that to be efficient I will need to provide an exhibit that I will be referring to from the transcript, so that if I can just have that on the file and marked so that I can refer back to it.
PN188
VICE PRESIDENT LAWLER: Yes, I think we ought to mark the Appeal book too. Any objection to that course?
PN189
MR DOUGLAS: No, your Honour.
PN190
PN191
VICE PRESIDENT LAWLER: The exhibit PFG12 to the affidavit of Paul Gilbert of 28 October 2003 will be exhibit ANF2. Do you have any objection to that being marked as an exhibit, Mr Douglas?
PN192
PN193
VICE PRESIDENT LAWLER: Now, was that before Senior Deputy President Kaufman?
PN194
MR GILBERT: It was, indeed.
PN195
VICE PRESIDENT LAWLER: It was?
PN196
MR GILBERT: Yes, it was. It was also marked as an attachment to the evidence of Sally Higgs, who was another witness in that matter.
PN197
VICE PRESIDENT LAWLER: Thank you. I just want to be clear about the status on the appeal of these documents. Although they are being marked as exhibits, it is the Commission's practice to mark many things as exhibits that aren't strictly evidence, but they are marked for the purpose of identification, and in the Courts one would see an MFI marking rather than an exhibit marking. But the only, as it were, fresh evidence which has been received by this Bench is exhibit A1, which is an exhibit strictly on the application for leave and not in the appeal proper at the moment. And if you wish to submit to the contrary, Mr Gilbert, that is a matter for you.
PN198
MR GILBERT: Thank you, your Honour.
PN199
VICE PRESIDENT LAWLER: I just don't want there to be a misunderstanding as to what the status of these various documents is in an evidentiary sense.
PN200
MR GILBERT: No. It has really been sort of marked for convenience.
PN201
VICE PRESIDENT LAWLER: We will adjourn until two.
LUNCHEON ADJOURNMENT [1.08pm]
RESUMED [2.02pm]
PN202
VICE PRESIDENT LAWLER: Mr Gilbert, I notice you have handed up a list of transcript references.
PN203
MR GILBERT: Delicately hand scribed, your Honour.
PN204
PN205
MR GILBERT: Thank you, your Honour. We provide those again for the reasons that we discussed before the adjournment, in relation to the context in which the clause should be read having regard to the operations of Alcheringa, and that was a context in which we say his Honour should have been or was very familiar with in that he had effectively dealt with that industry in his role on the panel in Victoria for quite some time, and also in his direct relationship with the hearings in Swan Hill at Alcheringa.
PN206
In our view the ordinary meaning of the words in clause 37 in that context means that the union will simply have reasonable access to the noticeboard as a form of communication with employees who either are or are eligible to be members of the union on matters pertaining to their representative or the union's representative role of the employees covered by the agreement again in the clause as I have already referred to.
PN207
In our view his Honour shouldn't have taken a strict narrow approach to what that clause meant, and the transcript references will show what it meant at the workplace. We would like to refer quickly to some cases that have been handed up to you in the white volume. We say firstly the City of Wanneroo v Holmes, which is at tab one, not surprisingly, at page 378, and we say his Honour there outlined the three steps that should be taken in the interpretation of an industrial instrument, and that the interpretation begins with a consideration of the ordinary meaning of the words used.
PN208
The words are read as a whole ending context and ambiguity may be resolved by consideration of the history and subject matter of the industrial instrument. More recently this approach was also applied by Deputy President McCarthy in Global Electrotech Pty Limited which is at tab two, and I will be quoting from paragraph 34 of that document, which states that:
PN209
Whilst on the face of the words in the agreements other and broader meanings may be capable of being given to the phrase, I am satisfied from the explanation by the employers that the meaning of the phrase union business is confined to issues associated with the operation of the agreements. I am therefore satisfied that the requirements of section 170LI are met.
PN210
And again we say his Honour was aware of the context in which Alcheringa operated, and there was evidence before him of the way the clause operated. In our submission his Honour should have found that the clause was incidental to the clauses I have referred to earlier, and using the test established by your Honour Vice President Lawler in National Standards Commission, and that is at tab three.
PN211
VICE PRESIDENT LAWLER: It is a dangerous authority, so don't place any reliance upon that one.
PN212
MR GILBERT: I will leave that to the Bench to decide. At paragraph 13:
PN213
In my opinion the decision of the Full Bench should not be interpreted as imposing a requirement that a clause can be incidental only if there is something in the terms of the clause ...(reads)... affect the operation of that other clause in a manner that is direct as opposed to consequential or remote.
PN214
The relevance of that we say is, as already indicated, the industry is one that operates 24 hours a day seven days a week, people are difficult to access let alone the geographical location of the facility, and that the only way that realistic communication can occur in many circumstances is by the utilisation of a noticeboard and that, for example, might be in relation to a dispute arising in relation to work load and as a work load management clause, a dispute relating to any matter that would utilise the grievance procedure in the agreement, and other clauses that I have already referred to.
PN215
We would now move on to his Honour's considerations of 170LJ(3)(a) and what constitute reasonable steps. The Macquarie Dictionary defines reasonable as, firstly, endowed with reason, secondly, agreeable to reason or sound judgment, thirdly, not exceeding the limit prescribed by a reason not excessive, and fourthly, moderate or moderate in price. The Appeal Bench in print 951805, which is the appeal of the original decision of his Honour - - -
PN216
VICE PRESIDENT LAWLER: I suggest, Mr Gilbert, in the context, used in a legal context the word reasonable invariably connotes what the reasonable person would have done in the circumstances, and strictly an objective matter. The Full Bench gave consideration as to what reasonable meant in terms of reasonable steps in the Full Bench decision of the appeal - sorry, the appeal of the original decision of Senior Deputy President Kaufman. If it was what a reasonable person did, your Honour, I would feel more comfortable if it was that alone, because I did it. It probably won't necessarily help me.
PN217
So just referring to there, the Full Bench determined that section 170LJ(1) and (2) had been met in respect to the agreement, and that is at paragraph 57 and 58 of the Full Bench decision which is in the Appeal book. I have had to give my folder away for the person who is preparing the transcript references, which may be of assistance. It is at tab seven of the Appeal book at paragraphs 57 and 58 of that decision. The Full Bench again in respect to reasonableness said:
PN218
Can it be said in those circumstances that it gave all of the employees of the relevant class a reasonable opportunity to decide and answer that question ...(reads)... reasonable opportunity to decide whether they wanted to approve the agreement.
PN219
And in the context of that decision those steps were taken by the ANF with the employer's acquiescence. So it therefore fell to his Honour Senior Deputy President Kaufman to decide if reasonable steps had been taken to ensure that all employees to be covered by the agreement had ready access to the agreement in writing at least 14 days before the approval was given, and that before the approval reasonable steps were taken to explain the terms of that agreement to those employees. The Full Bench concluded that:
PN220
Reasonable opportunity would be fulfilled if the employer gives, in the sense of permitting, all of the employees of the relevant class the appropriate occasion to decide ...(reads)... it does however provide a guide to its intent.
PN221
We would say it follows from that that reasonable steps, as compared to reasonable opportunity, reasonable steps would be to give, in the sense of permitting, all of the employees of the relevant class the appropriate occasion to have ready access to the agreement and to have the agreement explained to them should they so desire. As to whether Alcheringa did take reasonable steps to ensure that ready access to the agreement was provided to employees, it is accepted that reasonable steps by an employer may include leaving those actions to a registered organisation.
PN222
Apart from the Alcheringa Full Bench allowing or confirming that that was possible, there is also a decision in tab four of the white volume.
PN223
VICE PRESIDENT LAWLER: Sorry, where were you reading from just then, it is accepted that?
PN224
MR GILBERT: No, sorry, I finished the quote. I should have said so. I am reading from my own written document here, but the quote from the Full Bench concluded as "at a guide to its intent," which was at paragraph 57 and 58 of the Full Bench decision. Now, we are saying that that definition of reasonable opportunity could be translated into what would therefore constitute reasonable steps for the purposes of 170LJ(3)(a), that is, did they give or permit all of the employees of the relevant class the appropriate occasion to have ready access to the agreement and have the agreement explained to them should they so desire.
PN225
And we say in our submission that it is accepted that reasonable steps by an employer may include leaving those actions to a registered organisation. And at tab four of the white volume we refer there to the full Monty performance certified agreement 2002 to 2005, print 945602 at paragraph 32:
PN226
In this matter I find that having regard to the specific industrial circumstances it was reasonable that the employer effectively left the provisions of access to the terms of the agreement in writing ...(reads)... I find that the relevant statutory requirement of section 170LJ(3) has been met.
PN227
We say his Honour found that ANF had taken steps as required by section 170LJ(3)(a) but that those steps in his view did not amount to reasonable steps despite accepting that ANF did distribute copies of the agreement in a number of places throughout the facility and that ANF staff updates placed on the noticeboard refer to the circulation of multiple copies of that agreement. This is the document I handed up before, which I imagine is going to be ANF2, and these are documents that were placed on the noticeboard of the facility, and these documents were to fulfil in part two matters that the ANF felt were important in ensuring that there was access to the agreement.
PN228
Firstly it provided a precis of the major parts of the agreement, that is the EBA update one. And you will see a number of dot points down there that explained the benefits that were available for employees in the agreement. And it also at the bottom of EBA update one says:
PN229
Multiple copies of the agreement will be circulated in the workplace and all employees whether union members or not should read the EBA and become familiar with it ...(reads)... will be given the opportunity to vote on the agreement.
PN230
And then over the page there was a slightly updated version of that that was sent out the following day, and they were put on different coloured paper because of the likelihood that people mightn't otherwise realise that they were different, and it was in recognition that we had received a letter from Alcheringa at that time that said that they weren't going to support the certification of the agreement and didn't believe that they had an agreement any more.
PN231
But we took the view that employees should be aware that that was Alcheringa's position so that when they voted they knew what they were voting on and the context in which they were voting on it. So this document was placed on noticeboards so that employees knew what was - a precis of what was in the agreement and that copies of the agreement were going to arrive for their inspection, and encouraged them to do so whether they were union members or not, and also advised the employees of the intention of the ANF to attend and to explain the agreement to employees who were interested in having it explained to them on two separate occasions on 3 September 2003.
PN232
In paragraph 46 of his Honour's decision he recognises that the ANF delegate Sally Higgs:
PN233
Placed the ANF updates on the noticeboards close to three or four locations.
PN234
Then he goes on to say:
PN235
There is no evidence that those notices drew the attention of the employees to the fact that copies of the agreement had been distributed.
PN236
SDP Kaufman went on to decide:
PN237
That the evidence is that the notices did nothing of the kind.
PN238
DEPUTY PRESIDENT IVES: Sorry, where are you quoting from now?
PN239
MR GILBERT: Sorry, paragraph 46.
PN240
DEPUTY PRESIDENT IVES: Thank you.
PN241
VICE PRESIDENT LAWLER: Is there any evidence that the posting of notices on these noticeboards was the usual way in which Alcheringa communicated with its employees?
PN242
MR GILBERT: Certainly there is, and the transcript references in relation to the noticeboard will go to that, and the transcript references that we will provide in relation to both access to the agreement and explanation of the agreement will go to that.
PN243
VICE PRESIDENT LAWLER: So you say there is an error of fact here when he says there is no evidence that those notices drew the attention of the employees to the fact that copies of the kind had been distributed?
PN244
MR GILBERT: I am saying that there is evidence that they did. On their very face they brought it to their attention by the words in the notices and by the evidence that was given by witnesses. You will have to excuse my lack of legal training as to exactly what you are asking me.
PN245
VICE PRESIDENT LAWLER: Mr Gilbert, you are doing an excellent job, that is fine. In other words you contest the assertion of there being no evidence that those notices drew the attention of the employees to the fact that copies of the agreement have been distributed?
PN246
MR GILBERT: Very much so.
PN247
VICE PRESIDENT LAWLER: You say the notices themselves did and there was other evidence in any event?
PN248
MR GILBERT: Yes. And there was evidence that a number of employees have seen the notices and that the notices were on the noticeboards. There were employees who didn't see the notices and employees who choose not to look on noticeboards, and a range of things that I am sure the other side will bring to your attention. But we say that in the general term of reasonableness you can lead a horse to water but you can't make them drink. You can bring these things to people's attention, make them aware.
PN249
Alcheringa in the witness evidence will say themselves that when they want to alert employees on an important matter they put a memo on the noticeboard, the same noticeboard that we put our notices on. So those notices in our view clearly stated that there were enterprise agreements on their way and that people should keep an eye out for them and that they should read them, become familiar with them and seek any information they needed to know about them.
PN250
His Honour then continued by finding, again we say contrary to witness evidence, that the placing of those copies had not been publicised and that they may have therefore gone unnoticed in the locations in which they were placed.
PN251
DEPUTY PRESIDENT IVES: Mr Gilbert, it may be not a matter of great substance but I should bring your attention to it. The reference that you made to the Senior Deputy President's decision at 46 uses the past tense, in it says there was no evidence that those notices drew the attention of the employee to the fact that copies of the agreement had been distributed. I note that the notices that you have provided talk about the future tense and say that multiple copies of the agreement will be circulated in the workplace.
PN252
MR GILBERT: Well, in our submission we could have only read it the way that we have put it to you today given the evidence that was before him, that it was intended to relay in his decision that employees had no way of knowing that the agreements were sitting there waiting to be read. So we say what he is saying is that to draw the conclusion you have to draw the conclusion that the employees took no notice of it.
PN253
DEPUTY PRESIDENT IVES: Yes. But you are saying aren't you that there is an error of fact in the Senior Deputy President's reasoning, that is your contention as far as this appeal is concerned is it not?
PN254
MR GILBERT: Yes.
PN255
DEPUTY PRESIDENT IVES: Yes. Well, I am simply pointing out to you that it would appear by the tenses that that may not be the case.
PN256
MR GILBERT: Well, if the alternative were so, and he was saying that the notices were put up before the agreements and therefore didn't bring to the employees attention that the agreements had arrived, if that is the implication, you couldn't say that they did nothing of the kind, which is a direct quote. I mean, by their very nature they were designed and written exactly to achieve that end. So employees knew they were coming and to make sure that they took up the opportunity if they wished to when they arrived.
PN257
And the witness again, which we will provide to you in table form, will show that the majority of places, if not all of the places where the agreements were placed were directly below the noticeboard. You couldn't pin them on the noticeboard because they were too thick, but they were placed on a table below the noticeboard in each of the locations on which the noticeboards existed.
PN258
DEPUTY PRESIDENT IVES: So you are suggesting that the sentence that follows, where it says that the evidence is that the notices did nothing of the kind, that, in fact, you are saying that they did do something of the kind, that being that they suggested that those - - -
PN259
MR GILBERT: Well, the primary position is they did exactly that. But failing that, if you were to take it as the tense in which you are presenting it, then they did something of the kind. They didn't do nothing of the kind. I don't thin you could conclude any other way.
PN260
VICE PRESIDENT LAWLER: Mr Gilbert, the chronology is that Alcheringa had indicated its withdrawal or purported withdrawal of the agreement before there was any question of compliance with the steps in 170LJ(2) and (3), is that right?
PN261
MR GILBERT: Certainly LJ(3) and LJ(2), that would be right.
PN262
VICE PRESIDENT LAWLER: And if an employee read the Alcheringa Hostel EBA update number one in exhibit ANF2 and decided they wanted to look at the agreement, how were they to know where to go to see a copy of the agreement?
PN263
MR GILBERT: They were on the table below the noticeboard that the notice was place on in each of the areas, the four areas. They were covered again in the witness evidence. Perhaps if I could just encapsulate in a sentence what the witness evidence was about. I mean, Alcheringa called some 19 or 20 employees, I can't remember the exact number, to give evidence that they either hadn't seen it, didn't have it explained to them, etcetera. It is our submission that that witness evidence showed that they all had access to the agreement but they were not interested in taking up that opportunity.
PN264
So no one couldn't get to the care office, no one couldn't get to the table under the kitchen noticeboard, no one couldn't get to the staff dining room. They were all in places that employees readily entered and they were all in places in close proximity to the notices referring to them. And as your Honour could probably imagine given the history that I have outlined today, it was also a matter of some discussion in the workplace, its existence and its upcoming ballot, and that is also in witness evidence.
PN265
In respect to whether or not reasonable steps were taken to ensure that before the approval was given the terms were explained to all of the employees to be covered by the agreement. If I can refer back to his Honour's decision at paragraph 58, he re-affirms his previous findings that a valid majority of employees did not genuinely approve the agreement. He does that on the basis that in his view the employees were confused about Alcheringa's position in withdrawing from the agreement, and that therefore they did not understand the agreement in the context of Alcheringa having claimed to have withdrawn from it.
PN266
We would certainly say there was an attempt by Alcheringa to withdraw from the agreement, and to the extent that happened that was well understood, and to the extent it happened we provided a notice to employees confirming that notwithstanding that we took the view that the agreement could and should continue to operate between ANF, the HSUA and Alcheringa, and that we would take steps to try and secure certification.
PN267
The employees may not have been aware whether we would be successful or not in that. They may have been unaware what Alcheringa's long term view of whether they would be successful in that, whether they would or would not be successful in that, but they knew all of the information and they knew the agreement, and they had the opportunity to vote, they had the opportunity to have the agreement explained, they had access to the agreement and they voted, and in our submission they understood what they were voting on, even though in the same sense if I went and did an agreement today and the employees voted on it I might say to them, I don't know what the Commission's view is going to be about the subcontractor clause. It may well come to some grief when we bring it up for certification.
PN268
So when people vote on it they know that there may well be some difficulty about having the agreement certified, but they still vote on it in that knowledge, and that doesn't take away genuine approval. It is known to them that there is a controversy, the controversy is explained to them, and they vote on it in that knowledge.
PN269
VICE PRESIDENT LAWLER: May I ask you this question, Mr Gilbert. Section 170LJ(3) casts affirmative obligation on the employer. The employer must take certain steps or must take the specified steps. In this case Alcheringa had before there was any question of compliance with 170LJ(3), had determined they wished to withdraw from the agreement. Isn't it the case that Alcheringa as employer took no steps at all in relation to the compliance with 170LJ(3), rather that those steps were taken not by the employer but by the ANF?
PN270
MR GILBERT: We would say that is addressed in the Full Bench Appeal decision where they expressed the view that the employer acquiesced in allowing ANF to undertake that function on the employer's behalf, and that there is nothing either wrong or unusual in that, in fact. Certainly in our industry being the majority of very small workplaces is quite often the union that with the acquiescence of the employer undertakes that function or, indeed, make the employer and the union undertake that function.
PN271
VICE PRESIDENT LAWLER: You're looking at 61?
PN272
MR GILBERT: I am hoping, sir. As I said I have given away my marked folder. I wouldn't have thought so. I am looking certainly - you might be right, sorry, I am looking at 61. I should have my glasses on.
PN273
VICE PRESIDENT LAWLER: I think it starts at 54.
PN274
MR GILBERT: Yes. There is a specific reference to that. It was common ground that a vote of Alcheringa employees was taken to approve the agreement. ANF contends that a reasonable opportunity was given to the relevant class of the employees, and it was Alcheringa that gave them that opportunity. Alcheringa contends that it did not, and then it goes back to the matters I read out before about how that Full Bench viewed reasonable opportunity having been provided, and that taking into account those meanings and the conditions in section LE(c), or, sorry, that the condition in LE(c) will be fulfilled in our view if the employer gives, in a sense of permitting, all of the employees the relevant class the appropriate occasion to decide whether they want to give their approval to the agreement.
PN275
DEPUTY PRESIDENT IVES: Yes. But that refers to 170LJ(2) does it not?
PN276
MR GILBERT: Indeed it does. And our submission is that the same logic should apply to LJ(3), in that if the employer in the sense of permitting gives the ANF the opportunity or acquiesces to ANF undertaking the requirements of LJ(3), keeping in mind that the evidence is they gave us a list of employees for the express purposes of running the ballot, and that evidence is in the Full Bench decision.
PN277
VICE PRESIDENT LAWLER: Within the meaning of 170LJ(3)(a) or 170LJ(3), what are the steps you say Alcheringa took to ensure that at least 14 days before and before any approval was given and so on?
PN278
MR GILBERT: They acquiesced and allowed the ANF - - -
PN279
VICE PRESIDENT LAWLER: So the step that they took in compliance with 170LJ(3) was the acquiescence of permitting the ANF to - - -
PN280
MR GILBERT: To undertake those functions. And, indeed, there are other organisations that undertake those functions such as employer representative organisations, private industrial advocates and a range of other organisations that will do those steps on an employer's behalf. The other matter about the explanation of the agreement, if I can just roll those two news flashes in ANF2 before you, there is a statement in there that people who - it says:
PN281
Interested staff may attend either meeting. Staff members with any queries who cannot attend either meeting can contact Paul Gilbert at the ANF on 92759333.
PN282
So there was a third option other than attending either of those meetings for people who wished to be provided with an explanation of the agreement. We don't believe that there were any employees who wanted to know something who didn't know, who wanted the agreement explained to them and didn't have that opportunity. The witness evidence will show that every employee who gave evidence here on behalf of the employer gave evidence that they weren't denied access to the meetings that the ANF held, they weren't denied access to the copies of the agreement, they weren't denied access to the noticeboards that gave explanations about the agreement and when meetings were to be held.
PN283
Senior Deputy President Kaufman then relied on his findings in paragraph 56 to 58 of his first decision, which I think is tab two of the Appeal book to decide that LJ(3) had not been met. It is not tab two, I have misled you, sorry. It is going to be right up the back, tab nine, paragraph 56 to 58. Keeping in mind that the Full Bench found differently in respect to LJ(2), but his Honour starts off with his references about section 170LJ(2) in his decision dealing with the remittal back from the Full Bench.
PN284
As I have already indicated, it is our view that there was no employee, and there was witness evidence to show that there was no employee didn't understand what was going on. Every employee for whom evidence was given understood what was going on. His Honour then goes on to find that the vote of the employees who did cast a vote was also not genuine because their consent was not informed.
PN285
Arising from the original decision and the appeal it is clearly apparent that there is a different test for LJ(3) versus LT(5). One requires approval and one requires genuine approval, and that you can meet the test in LJ(3) by having a vote, but that may not turn out to be genuine in the view of the member certifying the agreement, and that they obviously have options open to them about that.
PN286
But we would say that genuine approval did, in fact, occur. As I have said, everyone had an opportunity to have the agreement explained to them and had ample opportunity to read the agreement and take steps to find out about it. In our view they are reasonable steps, we took reasonable steps. For example, if it was so that it was anticipated that every employee covered by an agreement was personally provided with one, then if I was to take the example of our nurses multi employer agreement that was certified two years ago, it covers some 60,000 nurses in the public sector. It would be no reasonably clearly to provide 60,000 copies of that agreement for each employee for their personal approval.
PN287
VICE PRESIDENT LAWLER: That is unnecessary anyway, Mr Gilbert. The Act expressly says or ready access to them.
PN288
MR GILBERT: Ready access. And I draw the conclusion, we say there was ready access and the steps we took were reasonable steps. At paragraph 58 his Honour concluded that not all of the relevant employees were given the required opportunity to decide whether they want to give approval or not. And we say the Full Bench clearly said that there was an opportunity for every employee to decide whether they wanted to give approval or not.
PN289
The question about genuineness was left to his Honour, but the question of whether or not approval occurred was found to be so by the Full Bench in the paragraph we were referring to earlier.
PN290
VICE PRESIDENT LAWLER: The problem I am having at the moment, Mr Gilbert, is that in paragraph 61 it would appear as a matter of face value that the Full Bench has made a finding that the requirements of 170LJ(3) have been met. The second sentence is that it is apparent that the employees had ready access to the agreement and that its terms were explained at least 14 days before the vote was taken. The employer was aware of the fact and so on.
PN291
MR GILBERT: Yes.
PN292
VICE PRESIDENT LAWLER: But there is no utility then in remitting to SDP Kaufman for determination as to whether or not 170LJ(3) has been satisfied.
PN293
MR GILBERT: What he is really being asked to do is whether LT(5) has been satisfied, which puts a greater test on the approval than LJ(3). We certainly struggled with dealing with that. I think everyone would concede we have struggled to some degree, including his Honour, on what exactly he was being asked to consider by the Full Bench when it was remitted back to him. But LJ(3) deals with approval, or LJ(2) deals with approval, and LT(5) deals with genuine approval, which becomes then a qualitative test that the Commission must do to make sure that the approval was genuine.
PN294
But having said that his Honour then found that approval hadn't been given when it was apparently so having regard, we say, to the evidence and obviously to the Full Bench had already formed the conclusion that approval had been given and that the employees were given the required opportunity to decide whether they wanted to give that approval or not. There will be considerable transcript references relating to the ballot process as well.
PN295
His Honour then relies on his understanding of the witness evidence to conclude that employees were denied the opportunity to have the agreement explained to them, and he says a large number of employees could not attend because of other commitments. There was another meeting arranged by the employer that clashed with Mr Gilbert's meeting. Some were on leave and others were not rostered on to work during the course of the day of the meetings.
PN296
Again the witness evidence will show that no person was denied the opportunity to attend one of those two meetings. In the event that there had been witness evidence to that effect there was the third option available to them, to contact me by telephone to have the agreement explained to them. The fourth option was to rely on the precis of the agreement that the ANF had put out that in our view was an entirely accurate precis of the agreement.
PN297
The fourth option was to ask their employer about what it meant. But every witness who was called by Alcheringa started to claim that they didn't or weren't afforded that opportunity. We say the witness evidence shows that they were, and we will point out those relevant excerpts. If I can take you to Boroondara City Council Local Area Workplace Agreement which is in tab five of the white volume, and that is at paragraph 10, and the third sentence thereof states:
PN298
The fact that there was a considerable number of absentees of itself does not demonstrate that a reasonable opportunity of the kind contemplated by section 170LK(7) was not afforded to the supervisors.
PN299
And LK is in comparable terms to LJ(3). So the mere fact that people don't avail themselves of that opportunity is not of itself evidence that reasonable steps haven't been taken.
PN300
VICE PRESIDENT LAWLER: That is precisely no doubt why Mr Douglas called all those witnesses.
PN301
MR GILBERT: Undoubtedly. And we say in his view his witnesses didn't prove his point and they, in fact, proved our point. In tab six of the white volume in A. Mozi v Australian Customs Services, this was an appeal against a decision under 170CE(1), and this goes again to another test if you like of what constitutes reasonable in the context of an unfair dismissal situation where the employer must provide the employee with a reasonable opportunity to respond to allegations. At paragraph 45:
PN302
In this matter it is accepted that the employer had a duty to give Mr Mozi an opportunity to be heard on why he should not be suspended from duty without pay ...(reads)... a failure to accord procedural fairness in making the decision to suspend the applicant from duty without pay.
PN303
At tab seven, and we say in a similar vein the Commission in Aardvark Security Services Pty Limited v VIC, at paragraph 54 on page 16, and this is quoting Deane J in Sullivan v Department of Transport, one that I hope the Bench doesn't apply to me too harshly:
PN304
It is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes on the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity of which he is entitled.
PN305
And again we say reasonable opportunity was provided, and people chose not to take it up. Now, we say LJ(3)(a) and (b) and LT(5) were met, all of those requirements were met to the extent the employer must take them, as we have already indicated, it is open for the employer to allow a third person to take those steps, and a third person took them and they were reasonable steps. Unless there is any other questions I want to move on to the final part of the submission which relates to what we say was open to his Honour or, indeed, open to the Full Bench, in the event that we are wrong on any of the previous three points.
PN306
And this goes back to the objects of the Act and the obligations imposed on the Commission to seek to facilitate the making and certifying of agreements rather than to perhaps what as we have said, take the view that jurisdiction is not available and they should be discharged from the Commission. This is a matter I know from various cases has troubled the Commission, and as to what is open to the Commission to do in those circumstances.
PN307
We would say that clearly there must be a proceeding before the Commission when the Commission is considering an application for certification. One would presumably say if there wasn't a proceeding it would be hard to imagine what we were appealing from today. There must be a proceeding before the Commission. We say that the provisions of 111(1) are available to the Commission to deal with circumstances similar to those that were here with us today. We say there is nothing in the Act that precludes 111(1) from applying to those circumstances.
PN308
VICE PRESIDENT LAWLER: Can you put me out of my misery, Mr Gilbert, and tell me what it is you say should have occurred?
PN309
MR GILBERT: You understand the debate then. What we say is that there was - before the Commission arrived at a conclusion or a tentative conclusion that there was a clause that might have offended LI or that there was some doubt in his mind that there was genuine approval in the sense that there wasn't either ready access to the agreement or an explanation, in the context of the objects of the Act he should have used the powers available to him under 111 to remedy that situation to allow the agreement to, subject to the other requirements of the Act, be presented back to him in a form that could be certified.
PN310
Now, if it were so that LI was likely to cause clause 37 to make the agreement contain a matter that didn't pertain and was unable to proceed - - -
PN311
VICE PRESIDENT LAWLER: Which power in 111 should he have used? The general power to give directions?
PN312
MR GILBERT: Could do all such things.
PN313
VICE PRESIDENT LAWLER: 111(1)(t).
PN314
MR GILBERT: I am not saying there aren't others to open to him. There is clearly 111(g)(3) I think isn't open to him thankfully by virtue of other sections of the Act, but all other provisions of the Act, all other provisions of 111 are open.
PN315
DEPUTY PRESIDENT IVES: Yes. But some of them are not relevant. What we want to know, Mr Gilbert, is which one of those powers do you say was a relevant power that should have been used?
PN316
MR GILBERT: Certainly 111(1)(t). As the Commission is aware, 111(1)(r) is already used to deal with another alleged mandatory provision of the Act, being the extension of time. It is already used routinely to deal with that issue. Potentially (q), potentially (p). I would imagine that those would comfortably deal with any of the potential possibilities. I am not saying that having utilised those that might not require another 14 days of having the agreement available to employees and another opportunity for a ballot and another genuine approval process. But it doesn't require the agreement to be thrown out and re-start the process all over again.
PN317
DEPUTY PRESIDENT IVES: Well, I think the Senior Deputy President found, did he not, that there was no valid application before him based upon prior authorities to which he referred. So what do you say about that in respect of the use of the powers under 111?
PN318
MR GILBERT: Well, we say there is still a proceeding before him to enable an application to come back before him that is valid. The powers are open under 111(1), whichever one of the ones I have mentioned, for him to allow the parties an opportunity to bring the agreement back in a form that can be certified, and that would be consistent with the objects of the Act and the facilitating, the making and certifying of agreements rather than - - -
PN319
VICE PRESIDENT LAWLER: But whether he dismisses it or adjourns it doesn't matter does it? I mean, it was open to you to go back and go through the process again, wasn't it?
PN320
MR GILBERT: There are a range of reasons where that might become a predicament. I mean, if it was a slightly different context I would suggest, and it was the Electrical Trades Union up before the Commission trying to certify an agreement that they had negotiated six months ago, there may well be a different view taken. I mean, the consequences of not certifying that agreement for example, might be that the ETU go out and try and strike a new agreement that is better. So there are consequences for that.
PN321
Once the parties have an agreement, they have reached an agreement with mutuality at least in the first instance, and the Commission should take whatever steps are open to it to ensure that one party doesn't try to escape from it through fair means or foul.
PN322
VICE PRESIDENT LAWLER: But surely the duty on his Honour was to - he had an application, he had to determine it, to determine it according to law. He has either erred or he hasn't. But his obligation was to determine the application. If he is correct in coming to the view that it was defective his obligation was to dismiss it, was it not?
PN323
MR GILBERT: Well, we say that there are other options open prior to dismissing the application that would better give effect to the objects of the Act. And, indeed, these have happened in the past. If I take you to tab eight at page six, which is Deputy President McCarthy in Coca Cola Amatil Australia Pty Limited Enterprise Agreement 2003-2005, at paragraphs 32 and 34.
PN324
For the reasons outlined above I am of the view that there are no steps or role for the Commission prior to that prescribed in section 170LT(1) ...(reads)... the Commission necessarily accepts the existence of a proceeding.
PN325
And I won't go through the rest of that. In 34:
PN326
The powers of 111(1) are available in circumstances where an application has not been made in accordance with Division 2 or 3 ...(reads)... the Commission is not prohibited from certifying the agreement.
PN327
And this is I guess an extension of the TNT decision of Vice President Ross of some time ago. The time period for application is a must provision, and it must follow that if that is not met there is no valid application before the Commission. You can't make the application beyond the 21 days. I don't think that would meet the objects of the Act, and no one on this side of the table here is advocating that that should be any different than what it is. But the powers of the Commission should be used in order to meet the objects of the Act, and allowing an extension of time is one of those, and allowing other options to remedy otherwise defective applications would be another.
PN328
This has also happened in a Full Bench decision, which was the Community Health Centre Stand Alone Service Multi Employer Certified Agreement, which is at tab nine, which again was an extension of time to enable a valid application. We have also provided at tab nine Independent Supermarkets Certified Agreement 2002, another Full Bench decision, and we say that decision is authority for the proposition that it was open to Senior Deputy President Kaufman to allow the agreement to be amended and meet the objects of the Act. And again I emphasise that in doing that we are not saying that that doesn't require the steps - - -
PN329
VICE PRESIDENT LAWLER: Where is this decision?
PN330
MR GILBERT: In tab nine.
PN331
VICE PRESIDENT LAWLER: Sorry, I thought you had moved to something else.
PN332
MR GILBERT: And again in that decision it is referred back to the objects of the Act, and that the Commission should guide itself having regard to those objects in allowing certain things to happen. In this instance from memory they weren't overly convinced that a multi employer agreement was the appropriate agreement to be utilised, but were prepared to adopt a different approach given the particular circumstances of that case.
PN333
We would say that his Honour didn't exercise the discretion that was available to him and should have done so having regard to the objects of the Act. We have no further submissions except to say that in terms of remedy we would seek that the Bench quash the decision of Senior Deputy President Kaufman and certify the agreement having regard to the evidence that has been provided today and will be provided in terms of witness evidence or, in the alternative, that if LI is met, then if there is a concern about valid majority then the appropriate course that can be taken or should have been taken in the first instance was to order a ballot under section 135(2) which deals specifically with what the Commission should do in circumstances where it is not convinced about a valid majority.
PN334
VICE PRESIDENT LAWLER: 135(2)?
PN335
MR GILBERT: Yes, I think it is 135(2)(b).
PN336
MR DOUGLAS: (2)(a).
PN337
MR GILBERT: Yes, (2)(a). I am instructed it is 2(a).
PN338
PN339
MR BUNTING: Thank you, your Honour. Yours Honour and Mr Commissioner, we put in writing it outline, exhibit M1, the basic propositions we wish to make in relation to the, in particular, the fact that the noticeboard provision, clause 37 of the agreement, dos not in our submission pertain to matters connected with the employment relationship, it does not deal with matters pertaining to the relationship.
PN340
The essential point we make is that, and our reasons for making that submission are set out in short form in the submission. I am not going to take time going through all of that submission. I know time is precious in this matter.
PN341
VICE PRESIDENT LAWLER: The other members of the Bench will speak up if I summarise the position incorrectly, but I don't think any of us take the view that the noticeboard clause itself pertains to the requisite relationship. The question is whether or not it is properly seen as incidental.
PN342
MR BUNTING: Yes.
PN343
VICE PRESIDENT LAWLER: In broad outline, and now I speak for myself only, it seems to me that whilst the decision in Electrolux has created a lot of heat and light, upon a mature reflection that decision really does not affect any significant change other than with one qualification, to restore the status or ante before the Full Bench in Unilever, that qualification being that the distinction drawn between the agreement context and the dispute context of Atlas Steels is no longer a valid distinction.
PN344
But Atlas Steels interpreted the matters pertaining to the relationship of an employer and employee in accordance with the decisions of the High Court in Arkin v Portus, and held that every substantive clause in the agreement had to pertain to the relationship in that sense, and it allowed for the possibility of ancillary or incidental clauses and machinery clauses. It seems to me that that is precisely what Electrolux has reinstated, again with the qualification that it has rejected the distinction between the dispute context and the agreement context as a basis for authorising or finding that a particular clause pertains.
PN345
That being so, is it not the case that if a matter could properly have been included in an award before the WROLA Act was introduced, that is pre-1996, then it can properly be included in an agreement. And when I say if it could have been included in an award, not as a matter of discretion but as a matter of jurisdiction.
PN346
DEPUTY PRESIDENT IVES: The operative word being properly included I think.
PN347
VICE PRESIDENT LAWLER: Yes. And we therefore go to the authorities and to say, well, has there ever been a consideration by a Full Bench or the Full Federal Court or the Industrial Relations Court of Australia or the High Court in relation to noticeboards? We say yes, well, it has in Archer's case. And Archer's case a union noticeboard was held to be incidental. The question then is whether or not the clause in this case is materially different from the clause in Archer's case such that you would distinguish Archer's case.
PN348
MR BUNTING: Yes. And I suppose there is a question of whether Archer's case is still safe law, a safe authority. Your Honour, may I say that we generally agree with the way you have put the state of the law in the sense that Electrolux is a reinstatement if you like of the position as it was, as set out in Atlas Steels, subject to the one matter that you identified. So we agree with that.
PN349
We would make the submission that in this case the noticeboard provision could not be regarded either as pertaining directly, which I think there is no argument, nor could it be regarded as reasonably incidental or ancillary or in one of those other, a machinery matter or anything like that so as to save it. We respectfully say that Senior Deputy President Kaufman had it right on that matter. The clause here is a bare clause. It doesn't in its terms in the manner of perhaps the Archer's case provision which was under consideration with a log of claims.
PN350
It doesn't deal with a whole lot of other matters which might put a particular light upon the noticeboard provision. It just stands alone as a clause saying that the union is to have access or reasonable access to noticeboards at the employer's premises to place union notices. Again, there are a couple of other sentences, but that is essentially what it says, it is to have access to place at the premises, to place union notices.
PN351
And then there is nothing in that, having regard to the analysis of what pertains and what does not as set out in the Electrolux decision in particular, there is nothing in clause 37 which would allow you to say, well, that is somehow incidental to some other provisions which are legitimately within the pertaining sphere. The union, the ANF seeks to refer to some evidence to say, well, there is a background to it.
PN352
Now, I can't comment on the evidence, I haven't seen it, and I don't say that by way of complaint, but the fact is that I haven't seen it. But whatever that evidence is, your Honour, we respectfully adopt your Honour Vice President Lawler's observation that that evidence about what might have happened in the past really cannot affect the meaning of these words as they are stated in clause 37 of the agreement. Clause 37 of the agreement stands alone. Just imagine, if the Commission pleases, that there were, let's say two years down the track - - -
PN353
VICE PRESIDENT LAWLER: Perhaps I shouldn't have been so bold in that regard. The regular contractual principles, contractual construction principles necessarily have to apply here, otherwise we could end up in a situation where a Court construing an agreement that the Commission has to deal with would come to a construction at variance with the construction the Commission comes to, therefore it is essential the Commission apply the same principles.
PN354
MR BUNTING: Yes. We don't cavil with the general proposition that provisions are to be understood within their context and there can be evidence of extraneous material in appropriate circumstances. There is plenty of authority on that including in connection with industrial instruments. But we do have some pretty plain words here. The unions party to this agreement may have reasonable access to noticeboards at the employer's premises to place union notices. There is nothing ambiguous or difficult to understand about that.
PN355
DEPUTY PRESIDENT IVES: Mr Bunting, it is restricted to the unions party to this agreement.
PN356
MR BUNTING: Yes.
PN357
DEPUTY PRESIDENT IVES: You don't see any link if you like, for want of a better term, with other aspects of the agreement in the fact that these are unions which are party to the agreement.
PN358
MR BUNTING: I would say that that does not, your Honour, give rise to a restriction. The only restriction that gives is that it is some blow in union can't come and put notice or can't insist upon it, but it does not cut down in any way the nature of the use to be made of the noticeboard or what the noticeboard provision is about. Neither does the work - - -
PN359
DEPUTY PRESIDENT IVES: Yes. But I understood you to be saying that in your submission because of the way that particular provision is framed it cannot be incidental, ancillary or machinery. I just wonder whether the fact that the clause itself provides something to a party or to parties in this instance to the agreement itself might not give rise to an argument that it can be, in fact, incidental, albeit that the words don't specifically link it to other clauses within the agreement.
PN360
MR BUNTING: Your Honour, we would say something more is required. Clearly it is a privilege, a right being given to the union, so it is something being given to a party to the agreement and it is about union matters. But the law is very clear now that just because it is a matter of interest to the union does not - and even though it might in some indirect way be about employees, does not mean that it is a matter pertaining to the employment relationship. So there is nothing in that connection to bring it home, if you like.
PN361
Neither is there anything sufficient in the word reasonable, reasonable access, because that is just talking about the access, not the subject matter, not how the noticeboard might be used or what purposes overlined it.
PN362
VICE PRESIDENT LAWLER: Why is that so? In the sense that isn't the proposition this though; it can just make the assumption that the only issue is whether or not this clause can be construed in a way which is not fatal to the agreement. Isn't there a proposition out there that says where a clause is ambiguous, and here the relevant ambiguity is what does the expression have reasonable access to noticeboards at the employer's premises mean, does that mean merely physical ingress and egress to the locale of the noticeboard, or does it include access in the sense of being able to go to and place notices?
PN363
Once one has an ambiguity of that sort and one construction leads to invalidity and the other doesn't, isn't the principle that the clause ought be confined in the interests of ensuring validity consistent with the objects of the Act?
PN364
MR BUNTING: Firstly, your Honour, I would say there is no ambiguity introduced by the word reasonable. As your Honour pointed out previously, reasonable has a clear and objective meaning, and it might take a bit of working out case by case, but it has a clear and objective meaning. It is not ambiguous.
PN365
VICE PRESIDENT LAWLER: But wouldn't a reasonable person regard the access to the noticeboard as being something that could only be utilised for the purpose of posting notices that were relevant to the workplace and not notices in relation to a demonstration against the visit of nuclear powered ships for example?
PN366
MR BUNTING: A reasonable person might thank that, your Honour, but the words don't say it. That is the problem. Because the word reasonable governs access, but the noticeboard is to place union notices. That is not governed, that is not restricted in any way. Reasonable access, that means, you know, that might have something to do with the size of the noticeboard, where it is, whether or not you can get to it, things to do with accessing it. That is what needs to be reasonable. But what goes on the noticeboard can be anything.
PN367
Your Honour, if you would test it this way. Assume down the track the employer decided, well, we are not going to give you access because we are putting on notices about nuclear disarmament or global warming or something, they could be prosecuted because the plain black and white words say that they are to have access there to post union notices. And it would be no defence to come along and say, well, in the past they used it for some different purpose.
PN368
The test would just be, well, what do these words say? Are you giving that access? And so we say in our submission it is plain that it is not able to be saved by reference to something else, the pretty thin reeds that Mr Gilbert pointed to elsewhere in the agreement. In relation to Archer's case - - -
PN369
VICE PRESIDENT LAWLER: Well, Mr Bunting, I think this is at the very heart of the case, what we were just talking about, and that really the appeal turns on it. Isn't that though precisely what Higgins J was doing in Archer? When you read page six of volume 27 of the CLRs it is clear that claim 71 was a rolled up claim, it had multiple components, and one of the components was, and that the union be permitted to post notices on a board. There is then a dash, and his Honour says, as I understand union notices of meetings, etcetera.
PN370
The words following the dash are the way Higgins J read the bare claim that the union be permitted to post notices on a board. In other words there is an example of a reading down of a general claim to something which is appropriate or lawful or proper in the context.
PN371
MR BUNTING: Well, we don't know what the etcetera is, of course, as Mr Gilbert said. But, your Honour, there is a precise context given. It is a compendious claim as Senior Deputy President Kaufman I think described it, or a rolled up claim. The claim is all about right of entry sorts of provisions, inspecting wage books and time sheets and those sorts of things. It is not just about advancing the cause of the union. That may or may not have been an aspect of it. But it was saved so far as it needed to be an industrial matter by the fact that it had a necessary direct connection with inspecting wage books and things like that which - - -
PN372
VICE PRESIDENT LAWLER: It is got no connection. Posting notices have got no connection with inspecting a wage book. It is just part of a grab bag of rights or entitlements that a union wishes to have in order to better serve the interests of its members and advance its own interests ultimately in the interest of its members.
PN373
MR BUNTING: I would submit that it is directly connected with those. It is placed by the union as part of a claim dealing with these matters which have an integrated whole. Each one sheds some light on the other. What we don't have here, it is conceivable one would think if things could be drafted differently, but what we have here is just a plain clause standing on its own saying the union can come in and place notices on a noticeboard. And that is to be contrasted with what Higgins J was dealing with which was a series of claims - well, a claim. I withdraw a series. A claim consisting of parts, all of which are in the right of entry territory.
[3.13pm]
PN374
DEPUTY PRESIDENT IVES: Yes, but I still don't follow the submission, Mr Bunting. Why does that differentiate? Why then does claim in the context of the fact that it is in this compendious group of claims essentially make it a matter pertaining because that's what ultimately the determination at least suggests very strongly, and if you stand it on its own it doesn't. I can't see why simply the fact that it's part of a group of claims differentiates it.
PN375
MR BUNTING: Well, it is part of a claim, claim 71. Your Honour, I suppose there is a temptation to apply the approach of the High Court in resolving the matters in the Electrolux matter about whether every part has to pertain. But we are looking at a different context. We are looking - - -
PN376
VICE PRESIDENT LAWLER: Mr Bunting, this is really having angels dance on the head of a pin territory. claim 71 could have been claim 71(a), 71(b), 71(c), 71(d).
PN377
MR BUNTING: But it wasn't.
PN378
VICE PRESIDENT LAWLER: But are you saying that it would stand or fall depending on how it was structured in that fashion?
PN379
MR BUNTING: It would stand or fall according to an objective assessment of what it was about. Now, clause 37 - what we are interpreting is clause 37. Clause 37 stands unadorned, there it is, the union noticeboard for union notices.
PN380
VICE PRESIDENT LAWLER: I am sorry, I interrupted and I have distracted you from the thrust of answering SDP Ives question which is a question that I think he articulated better than I have and I am interested in hearing your answer to it. So you were saying?
PN381
MR BUNTING: Well, we would say that this claim number 71 is explicable as a whole by reference to all of its language. There is not even a full stop between these different aspects. They are all part of one thing. Now, it is to be distinguished from clause 37 in the agreement before you on that basis.
PN382
DEPUTY PRESIDENT IVES: The inspection of time and wages books and the access to the noticeboard is all part of one thing. I still don't understand that submission.
PN383
MR BUNTING: Well, the - - -
PN384
PN385
DEPUTY PRESIDENT IVES: I mean the fact that they might have been lumped together and separated by a comma rather than a claim number doesn't make any one of them any less of a claim, does it?
PN386
MR BUNTING: Your Honour, we don't deal with how it might have been. We deal with how it is and Higgins J - - -
PN387
DEPUTY PRESIDENT IVES: And it is you that is attempting to draw the distinction between the claim - or between, sorry, the clause as we have it in the agreement and the material and claims that were put forward in Archer and all I am trying to come to grips with is, is the distinction that you are drawing simply based upon the fact that it is together with a number of other unnumbered separated only by a comma, claims and therefore it is different? Is it limited to that?
PN388
MR BUNTING: Well, there is really two answers we have to Archer's case, your Honour. The first one is that in its context it is distinguishable from the situation before you because in its context it was dealing with a series of matters therefore it may well have been incidental to some of these other things and that is really the way in which I think Senior Deputy President Kaufman has distinguished it. That is, we say, perfectly acceptable and correct approach.
PN389
The second answer we would have is that to the extent that Archer might - that that point of distinction might not be available, Archer just has to be read in the light of a series of High Court decisions which really point in the other direction and which Archer and also the union badge case but it is particularly Archer's case has been subjected to significant criticism, perhaps starting with R.V. Kelly ex parte Victoria [1950] HCA 7; 81 CLR 64 and then R.V. Portus ex parte ANZ [1972] HCA 57; 127 CLR 353 and then the re Alcan decision in particular where it is all brought together. The Alcan decision being [1994] HCA 34; 181 CLR 96 and then finally, the Electrolux decision itself.
PN390
DEPUTY PRESIDENT IVES: Sorry, you say that these cases that you refer to are cases that in a general sense criticise Archer?
PN391
MR BUNTING: That criticise Archer's case, yes.
PN392
DEPUTY PRESIDENT IVES: Specifically on this point, Mr Bunting?
PN393
MR BUNTING: No, I don't know that I can say that. I don't say that because Archer's case dealt with other things.
PN394
VICE PRESIDENT LAWLER: Because you can't.
PN395
MR BUNTING: I am sorry?
PN396
VICE PRESIDENT LAWLER: You can't honestly say that.
PN397
MR BUNTING: No, and therefore I would not.
PN398
VICE PRESIDENT LAWLER: Yes.
PN399
MR BUNTING: Not specifically on this point, but because the point didn't arise other points did.
PN400
DEPUTY PRESIDENT IVES: But those criticisms then don't make Archer bad law on this point, do they?
PN401
MR BUNTING: No, they make it unsafe, your Honour, because the later cases say that just because it is something that the employer could grant and it might have gone to helping the union does mean that it pertains to the employment relationship. Something more is required, as Mr Gilbert was correctly saying before. Something more is required to make it pertain to the employment relationship. Now, the particular ruling in Archer's case might or might not be what the High Court could now say, but in any event, there was a context that makes it plausible.
PN402
It is distinguishable in this situation. We would say it should be distinguished in the manner that Senior Deputy President Kaufman did, but in any event, we would submit that the later rulings, Electrolux is the most recent but the others I have mentioned and in particular Alcan. The criticism of Archer's case there and the reasoning behind indicate that it would not be a safe authority on this point now.
PN403
I wish to add one matter in relation to the consequence of this. In our outline we really only deal with the noticeboard issue but I do want to make the submission that if as in our case it is so, if the presence of a non pertaining provision in the agreement is there then we say that that is fatal to the application. Section 170LI of the Act says - - -
PN404
VICE PRESIDENT LAWLER: I don't think you need to trouble us with that. We accept that.
PN405
MR BUNTING: Okay. Well, may I just give you some references to provisions within Electrolux and also one other case which I think make this very plain. From the joint judgment of Gummow, Hayne and Hayden JJ in paragraphs 153 to 156, McHugh J, 101 to 103 and then 111 and Gleeson CJ, paragraphs 13 to 17. I refer particularly I think on this aspect to the joint judgment. I think it is made very plain that unless there is a valid application, one meeting the description in LI, then there is just no business to be done under division 4.
PN406
Finally on that point may I just also give a reference to the mine management case. That is a case with unhelpful official title of CFMEU v AIRC, but known as the mine management case and it is (199) [1999] FCA 847; 164 ALR 73. That was a case about a section 170LK agreement which had been certified by Senior Deputy President Harrison. It was considered by the Full Court of the Federal Court that the necessary prerequisites for the application had not been met in the circumstances and they said at paragraphs 128 to 129 as follows, "It follows that the agreements - - -
PN407
VICE PRESIDENT LAWLER: It is invalid. They said it is invalid.
PN408
MR BUNTING: That was invalid, indeed. That the application was invalid and they say:
PN409
It remains only to add that the opportunities for rectification of the defective application provided by section 170LV are inapplicable.
PN410
Etcetera. We say that that is the position. I think I adopt the summary of the position as you put, Mr Commissioner. So we say in our submission, if you accept our submission, that the Senior Deputy had a right, Senior Deputy President Kaufman had a right and the noticeboard provision does not pertain, then the defect is unable to be addressed and the appeal should be dismissed.
PN411
VICE PRESIDENT LAWLER: Thank you, Mr Bunting.
PN412
MR DOUGLAS: Your Honour, Mr Muir has arrived by plane with two other employees. He is sitting in the court room I believe. Your Honour, I believe this in my submission would be an appropriate stage for the Commission to hear him. We haven't spoken to him.
PN413
VICE PRESIDENT LAWLER: Okay. So Mr Muir is giving evidence on the question of leave only?
PN414
MR DOUGLAS: Yes, in relation to the letter.
PN415
VICE PRESIDENT LAWLER: Mr Muir, can you come forward.
PN416
MR DOUGLAS: Your Honour, Mr Turner will put some questions to him, if that is appropriate as far as the bench is concerned. Mr Muir does not know, he certainly hasn't been told by us what Mr Gilbert said earlier today about the letter and I would suggest, your Honour, in fairness to him that he should be informed of what Mr Gilbert said.
PN417
VICE PRESIDENT LAWLER: Perhaps Mr Turner can do that.
PN418
MR DOUGLAS: Maybe if Turner can go - - -
PN419
VICE PRESIDENT LAWLER: He can do that through questions.
PN420
PN421
MR TURNER: Mr Muir, could you state your full name and address, please? Does the bench mind if the witness stays seated?
PN422
VICE PRESIDENT LAWLER: Certainly. Yes, of course?---Graham John Muir.
PN423
MR TURNER: And your work address, please?---Alcheringa Hostel in Swan Hill.
PN424
You are in fact employed by Alcheringa?---I am.
PN425
VICE PRESIDENT LAWLER: Mr Muir, can I show you this document which is exhibit A1 on the application for leave to appeal. Can you identify that as an original letter that you signed?---That is the original document, your Honour.
PN426
I think you also signed the schedule of signatures that is attached to it?---I did indeed, yes.
PN427
The letter is dated 2 December. The schedule of signatures talks about a letter dated 1 December. Can you explain that apparent inconsistency?---Your Honour, I was preparing the first draft on 1 December and tidied the document up yesterday, 2 December, so unfortunately there is an inconsistency between when we started the day before and when we finished the final document.
PN428
Mr Gilbert, I am not going to ask any further questions about that. You can pursue it as you will when the time comes. Thank you, Mr Muir.
**** GRAHAM JOHN MUIR XN MR TURNER
PN429
MR TURNER: Mr Muir, was the letter dated 2 December different in any substantive way from the letter dated 1 December?---Your Honour, the only difference between the two letters was that in my fast draft where I had numbers of employees or percentages or whatever, I only had Xs in the first draft because I wasn't sure of those figures until I did more research on it. So that was the only difference between the original document and the following draft that was presented to the Commission.
PN430
Could I just hand the witness a copy of the letter, please. Is that a copy of the letter we are talking about that has just been handed to you by his Honour?---Yes, it is, your Honour.
PN431
Now, in the bottom of the paragraph of page 1 you refer to 91 per cent of all votes cast were in favour of an agreement. Was that the LJ agreement that is currently before the Commission or is that the LK agreement you are referring to?---That was the Alcheringa Hostel version which is the LK from memory.
PN432
Now, how did the writing of this letter come about? Were you asked to write it by Ann Rough?---Ann Rough had nothing to do with this letter. I was approached by five staff members on Tuesday morning to prepare some sort of submission on behalf of the staff to the Commission to try and convey our thoughts on the whole matter. The issue arose after Alcheringa Hostel received advice that today's hearing had been brought forward from January and when the staff - when a number of staff heard about that coming forward they just wanted to convey to the Commission their feelings about the whole matter.
PN433
VICE PRESIDENT LAWLER: Is the core concern about the absence of getting the extra money that they feel they ought be getting because of the delays in this process?---Yes, a dollar in everyone's pocket is important but it is not the core issue, your Honour. The core issue is that so far as the vast majority of the staff is concerned a due process has been gone through in a democratic process. The staff have voted in a certain manner and their wishes are not being granted to them.
**** GRAHAM JOHN MUIR XN MR TURNER
PN434
This is in relation to the LK?---The EBA, yes.
PN435
The one that has been prepared by the company?---By the company. They have voted overwhelmingly in favour of that. They wish to adopt that. They are happy to go with it. They have a strong trust and respect for their employer, as was mentioned in the letter and there is a mutual respect and trust between an employer and employee and the stuff just aren't able to get this message through to people that they are happy with the agreement that was presented by the employer, they have voted strongly in favour of it. All they want to do is for that to be stamped and we move on to - - -
PN436
Did you personally show the 1 December draft, that is the one with the Xs instead of the percentages, to each of the people that signed on the attachment?---Each of the staff members saw the one with the Xs on it and they were - - -
PN437
Before they signed it?---Yes.
PN438
It wasn't a question of you summarising the contents to them and saying this is the letter that says we are supporting the LK?---No, the letter was presented to - was made available and was given to each of the staff to read. Each of the staff that has signed that document has read the document and as I point out to you, your Honour, the only change was that where I have written in actual figures now and percentages I didn't know those figures at the time when I did the first draft and we only had 24 hours to get something knocked and get down to you before today's hearing.
PN439
MR TURNER: Did the employees who signed the attachment appear to you have signed it willingly or was there some reluctance?---I can't recall any employee signing it other than willingly. They were more than happy to sign it and express their opinion.
**** GRAHAM JOHN MUIR XN MR TURNER
PN440
And 36 signed that document, is that correct?---There are 36 signatures to it, yes.
PN441
Were all staff, all the 60 odd staff available to look at the letter and sign it that day, or were some not on duty?---No, of the 62 staff members there was about eight or 10 members who are on various forms of leave and we are talking about Tuesday. There were about five or six staff members who had varying rostered shifts and other than go round and knock on their doors to get them we weren't able to get their signatures and the four senior enrolled nurses were not invited to - were not shown the document.
PN442
PN443
MR GILBERT: Mr Muir, do you know who I am?---Yes, I do, Mr Gilbert.
PN444
We have met before?---On a couple of occasions, yes.
PN445
The letter that we have been referring to, who helped you right that?---It was my own personal penning.
PN446
Your own personal?---Penning.
PN447
Penning?---Yes.
PN448
And you have got considerable experience in this sort of area, in the matters in which you are writing about, in your role at Alcheringa perhaps?---Well, as a layman person, administrative person, I have written many letters in my various roles in the community over probably 30 years in various administrative positions and secretarial positions.
**** GRAHAM JOHN MUIR XXN MR GILBERT
PN449
What is your current position?---Administration finance.
PN450
What is the title?---Administrative officer on the payroll. Administrative officer.
PN451
Has that changed in recent times?---No, it hasn't, in the four years that I have been there.
PN452
Do you remember what your title was when you gave evidence in Swan Hill?---I would presume it was the same, administrative officer.
PN453
It was personal assistant to the CEO as I recollect?---I beg to differ, your Honour, that is not correct.
PN454
So you have never had that title?---Never had that title.
PN455
Never had a title like it?---Never had a title like it.
PN456
And never been secretary to the CEO?---Never been secretary to the CEO.
PN457
But you describe yourself as the payroll officer?---I do the payroll as one of my duties, yes.
PN458
You describe that you were approached by five employees about drafting this letter. What day was that?---On - gee, what are we up to, Thursday - Friday. It was on my desk say on Wednesday morning.
PN459
Wednesday morning of last week?---No, this week.
**** GRAHAM JOHN MUIR XXN MR GILBERT
PN460
And do you have any personal knowledge of how those five people became aware this matter was on today?---That this matter was on today?
PN461
Mm?---Well, the company received a fax from the Industrial Relations Commission advising that the hearing that was to have been held in January had been brought forward until today and the staff were notified that the hearing had been brought forward. Some staff were notified that it had been brought forward.
PN462
Notified by who?---By the CEO.
PN463
Can you remember what she said?---Well, not exactly.
PN464
Or weren't you there?---Well, just that the hearing had been brought forward.
PN465
And what was the response of the staff who were in your presence when that was said?---Well, I happened to be working on my own at the time in my office doing my job and when I went to go out to get a cup of tea three or four, or four of five of the staff approached me and asked me could I prepare a letter to the Commission to try and express our views on the circumstances.
PN466
Because they want this over with?---They sure do.
PN467
So you felt you were in a good position to write that letter, that amongst the staff you had a pretty good idea of what was going on?---I felt that they had approached me because I had assisted in writing a letter on a previous occasion on behalf of the staff and they felt that I was probably the most experience or most capable to pen a letter at short notice for them on their behalf.
PN468
Was that the letter that was sent to the Commission on another occasion?---There was a letter sent to the Commission on another occasion, yes.
**** GRAHAM JOHN MUIR XXN MR GILBERT
PN469
Was it sent to the ANF as well?---Not from me, or not from myself.
PN470
There was this one sent to the ANF?---Not from - - -
PN471
But you penned it?---I penned it.
PN472
Why didn't you send it to the ANF as well?---Because I and the staff that I represent have no dealings with the ANF.
PN473
Ever?---I certainly have never had any dealings with the ANF and I would think the number of staff that are on the list probably have never had any dealings with the ANF.
PN474
But we have met before. Is it not the case that you have appeared in the Industrial Relations Commission before?
PN475
VICE PRESIDENT LAWLER: Do you suggest there is something improper in not sending a copy to the ANF?
PN476
MR GILBERT: No, I was going somewhere else in a minute. I can go there now if you like.
PN477
Was it a question that you didn't know where the ANF was that you didn't send it to the ANF, or you had no desire to send it to them?---Well, we were dealing directly with the Commission. We had a point of view that we wanted to express to the Commission and that is why we addressed it directly to the Commission. We are not dealing with the ANF. The staff are not happy with the ANF.
**** GRAHAM JOHN MUIR XXN MR GILBERT
PN478
Well, that is apparent from the letter, Mr Muir. That is apparent and this matter has had a long history. In fact you quote in your letter that, if I can find the exact words:
PN479
Since then the ANF has run a persistent campaign of objection and appeal, much to the frustration and annoyance of our employer, and thus the overwhelming majority of staff.
PN480
Is that right? Does that sound right?---They are the words in the letter, yes.
PN481
And somewhere else in the letter you refer to appeal after appeal?---Yes.
PN482
How many appeals are you aware of in the ANF as being involved in with Alcheringa?---I couldn't put a figure on it, Mr Gilbert, but I know there have been numerous.
PN483
More than two?---More than two.
PN484
So if I said to you that there was a hearing in Swan Hill to apply to have an agreement certified you would remember that, you remember that occasion?---The court house in Swan Hill, yes.
PN485
And the ANF appealed that decision, is that correct?---The decision of the Commission at the time?
[3.38pm]
PN486
Yes?---Yes.
**** GRAHAM JOHN MUIR XXN MR GILBERT
PN487
And we are here today that is another appeal? Yes, is that true?---I guess it is an appeal, yes.
PN488
Do you accept that makes two? Do you accept that makes two appeals?---Well, you are running them off, Mr Gilbert, yes.
PN489
Well, you said numerous and I said more than two and you said yes. I am asking you now, we have arrived at two, what is the third one?---Well, can I say that for the last 12 months the whole issue of EBAs, whether it is the ANF or the Alcheringa one has just been under constant appeal, once by, as I recall, by Alcheringa when they appealed - they appealed the voting process of the original ANF EBA and ever since then it has been the ANF challenging the Alcheringa EBA as I recall it.
PN490
What about where the eight nurses were sacked, do you remember that?---I recall that, yes.
PN491
Is that one of the matters that you are referring to?---It's not part of this discussion I don't believe, Mr Gilbert.
PN492
No, yet you say there have been numerous, more than two, and you can only find two. What is your view of the ANF, Mr Muir, just in a short statement preferably. I might blush otherwise.
PN493
COMMISSIONER EAMES: A pretty open invitation?---Well, your Honours, I may have an opinion about the ANF and I believe that I don't need to reveal what my opinion is, whether it be the ANF or any union. I have an opinion about unions.
PN494
MR GILBERT: Well, can I go as far as to suggest to you that that is a negative opinion?---It may or may not be, Mr Gilbert.
**** GRAHAM JOHN MUIR XXN MR GILBERT
PN495
DEPUTY PRESIDENT IVES: Well, you have been asked a question, Mr Muir. You are required to answer that question.
PN496
VICE PRESIDENT LAWLER: You are allowed to have your opinions too, Mr Muir. You don't have to - - -?---Well, I have an opinion. I guess it is not a highly - I have an opinion about unions, not necessarily the ANF. I have an opinion about unions and it may not necessarily be a highly favourable opinion.
PN497
MR GILBERT: No, I wanted to hear you say it. I have actually drawn my own conclusions about it from your letter. So that is a view you have held for some time?---About unions?
PN498
Yes?---It is a view I have held for 30 odd years.
PN499
And that tends to affect the way you think?---No. No, it doesn't, Mr Gilbert.
PN500
So you are entirely free of that view when you draft these kind of letters?---Yes, I am, yes.
PN501
And go around to staff and try and see who else will sign them?---Completely free.
PN502
Completely free?---Yes.
PN503
Well, I would suggest to you that you are not completely free and in fact that part of the drive for you preparing a letter and getting the staff to sign it was that you actually dislike unions rather than - - -?---I dislike unions and I was expressing the opinion of so many of our staff who have signed the original letters.
**** GRAHAM JOHN MUIR XXN MR GILBERT
PN504
And you are the payroll officer?---I am indeed.
PN505
And if somebody wants their salary packaging they come to you?---Yes.
PN506
And if they miss out on their salary packaging who do they go to?---Can I ask you what you mean by miss out on their salary packaging?
PN507
If it doesn't turn up in their pay?---If there is a problem with payroll they come and see me, yes.
PN508
Have you ever not paid someone their salary packaging? You have not put their cheque in the pigeon hole, is that possible?---I am not sure what the question is.
PN509
Can you recollect ever not paying someone their salary packaging?---Well, Mr Gilbert I don't pay the salary packaging. The funds are withdrawn - do I need to explain the process, your Honours?
PN510
Well, I actually expressed the question a different way but I changed it to make it easier but it didn't work. Isn't it the case that when people make claims that you have some responsibility for the processing of salary packaging?---Yes.
PN511
Does that involve the issuing of cheques?---I don't issue any cheques to do with salary packaging.
PN512
Do you provide cheques to people?---I don't provide cheques.
**** GRAHAM JOHN MUIR XXN MR GILBERT
PN513
Well, can you explain to me briefly what you do do in respect to salary packaging?---In respect to salary packaging the nominated amounts from each employee is deducted from their pay by our payroll services. That money is forwarded to an accounting firm who manage the salary packaging on behalf of the staff. The staff then claim their money back from that accounting firm either directly as a cash reimbursement for their expenses which that money is reimbursed into their bank accounts, or the alternative, if they haven't actually spent the money they have, they bill to pay, they claim back their funds via a request and the accounting firm prepares a cheque and that is forwarded back to Alcheringa to be handed to the staff members by me.
PN514
And how does it get from Alcheringa to the staff members?---Via me.
PN515
So you do distribute a cheque from time to time in relation to salary packaging to employees of Alcheringa?---I do, yes.
PN516
Thank you. Do you remember not distributing one to Sally Higgs?---I do.
PN517
It was the subject of a hearing in this Commission about - between July and December 2003 - 2003?---I do recall the occasion, yes, Mr Gilbert.
PN518
And you expressed a view, did you not, that you didn't think it was appropriate for the ANF members to be taking industrial action?---I am sorry, Mr Gilbert, but I don't recall that comment.
PN519
You were at a meeting. It was related to you in that hearing that you had been in attendance at a meeting at Alcheringa where you have said that it was inappropriate for those people to be taking industrial action and around about the same time the delegate for the ANF who was organising that industrial action in the workplace was denied her cheque for salary packaging and we ended up here in the Industrial Relations Commission. Do you remember that?---Well, there are two issues there, Mr Gilbert. One I don't recall making
**** GRAHAM JOHN MUIR XXN MR GILBERT
those alleged statements. The second part of the statement you make in relation to the cheque was it is the staff member's responsibility if they are requiring money to come back from their salary packaging, it is their responsibility to come to the pay officer and pick up their cheque. The cheques are not left around the building for anyone. The cheques are in an envelope and they are kept with me until such time as the staff member comes to pick it up. Now, if Sally Higgs didn't come to pick it up it sat with me in the safe.
PN520
COMMISSIONER EAMES: Are we going anywhere with this, Mr Gilbert, because we seem to be practising for the Australian Open at the moment?
PN521
MR GILBERT: Yes, I am buying time while I find a piece of transcript I was looking for, but it was important.
PN522
Can I just take you back to what you said at the start. I am putting it to you that you are reasonably important person at Alcheringa, Mr Muir. You may deny it, but I said to you that have you ever considered yourself as the private secretary to the CEO, or the secretary to the CEO, or the personal assistant to the CEO?
PN523
PN524
VICE PRESIDENT LAWLER: Mr Gilbert, do you have some specific instructions or some specific evidentiary material that is going to allow you to contradict, flatly contradict anything that this witness has said, firstly?
PN525
MR GILBERT: Yes.
PN526
VICE PRESIDENT LAWLER: Or alternatively, which will establish that he is some sort of management stooge?
PN527
MR GILBERT: It was always my historical understanding that Mr Muir was the private secretary or secretary, or personal assistant to the CEO.
PN528
VICE PRESIDENT LAWLER: But so what?
PN529
MR GILBERT: And that was his title. He says he never has been. He is on transcript in front of you now saying that he is the private secretary and this is within the last four years despite what he said in the witness box a moment ago and yes, I am leading to the conclusion that he is motivated by a range of factors, including his dislike of unions.
PN530
VICE PRESIDENT LAWLER: So far as he is personally concerned, he is personally entitled to his own opinions.
PN531
MR GILBERT: Yes.
PN532
VICE PRESIDENT LAWLER: And he is not to be advantaged or disadvantaged because of his own personal preferences before or against unions.
PN533
MR GILBERT: No.
PN534
VICE PRESIDENT LAWLER: But is there any basis to suspect, any basis at all to suspect that the 35 other people who signed this document didn't sign it knowing the flavour of the draft that they were supporting?
PN535
MR GILBERT: The other part I was getting to was that he is in a position of some authority over people and a position of power and people may wish to please him for those reasons. But I am content - - -
PN536
COMMISSIONER EAMES: How are we going to establish that?
PN537
MR GILBERT: I am content to move away from that. I have only one other line of questioning.
PN538
VICE PRESIDENT LAWLER: No, you shouldn't feel obliged to do that at all because for my part, let me say squarely, I am contemplating whether or not, and this is not necessarily the view of the other members of the bench, whether or not leave ought not be refused in this matter in the peculiar circumstances where on this evidence a clear majority of employees want this interminable litigation to come to an end and for the 170LK agreement to be certified and where you yourself say that apart from duration of operation there is no financial difference or difference of substance between the three agreements.
PN539
In other words, the union really at the end of the day ultimately is acting in the interests of its members.
PN540
MR GILBERT: Yes.
PN541
VICE PRESIDENT LAWLER: I appreciate that it has a broader interest as well in terms of the membership as a whole and on very peculiar circumstances, on peculiar occasions that may bring a union to into conflict with members at a particular workplace.
PN542
MR GILBERT: Can I say we are not in conflict with our members at this workplace at all.
PN543
VICE PRESIDENT LAWLER: Yes. So Mr Gilbert, don't be dissuaded from cutting the cross-examination short because you think that we are telling you you ought to, because it is important. But at the moment this witness does not appear to be sitting up there telling a pack of lies and exhibit A1 from my perspective seems to demonstrate that there is overwhelming support for an end to this litigation and an adoption of the LK agreement. Now, if that is what the workers want why shouldn't, I am thinking to myself, why shouldn't leave be refused to enable that to occur and - - -
PN544
DEPUTY PRESIDENT IVES: Unless of course you can cast doubt on the signatures or the way those signatures were obtained by something that you raise in cross-examination with the witness and to date we haven't seen that, Mr Gilbert.
PN545
COMMISSIONER EAMES: Or the development of the actual document.
PN546
MR GILBERT: Yes. I don't intend to challenge any further the development of the document. It appears to be taken as given that he has a longstanding dislike of some organisations and particularly the one I am representing and the one matter I do want to try and get to the bottom of still and just to alert him to the fact that on a previous occasion he was referring to himself as the private secretary, but is to the extent to which he is aware of the differences, if any, between the LJ agreement, the LK agreement and the AWAs, given as I understand the LK agreement has actually been withdrawn by the employer because of concerns about whether or not it would in fact find its way through here comfortably and - - -
PN547
VICE PRESIDENT LAWLER: Is that right, Mr Douglas?
PN548
MR DOUGLAS: No, it hasn't been withdrawn.
PN549
MR GILBERT: There is something to that effect that I have seen in writing in the last day or so. I think it is in the cover letter to the AWAs in fact, that your Honour has been provided with a copy of.
PN550
MR DOUGLAS: It has not been withdrawn. It is before Senior Deputy President Kaufman for certification.
PN551
VICE PRESIDENT LAWLER: And the application has been adjourned generally.
PN552
MR DOUGLAS: It has been adjourned pending the result of this appeal.
PN553
VICE PRESIDENT LAWLER: Yes.
PN554
MR GILBERT: Well, I haven't brought the document with me, your Honour, but you have got a copy of it and it refers to the fact that they are moving away from their LK agreement and going to AWAs and that is what I intended to say to you, not rather that they have withdrawn their application, but it would appear they don't intend to follow it any more anyway.
PN555
PN556
VICE PRESIDENT LAWLER: Thanks, Mr Muir.
PN557
MR GILBERT: Mr Muir, you remember giving evidence in Swan Hill?---I do, yes.
PN558
Do you remember Mr Turner asking you some questions, Mr Turner here today?---Mr Turner did ask questions, yes.
PN559
Did he ask you this question:
PN560
Mr Muir, it is necessary to ask you your name and address again for the purposes of recording?---Graham Muir, Donald Street, Nyah West.
PN561
?---If that's recorded that is what I would have said, Mr Gilbert.
PN562
And then you said thank you - or sorry, Mr Turner said thank you and you - and then you were asked a question:
PN563
Are you applied -
PN564
it says applied -
PN565
Are you employed by Alcheringa Hostel as a private secretary?
PN566
Do you remember what your answer to that was?---No, I don't, no.
PN567
Your answer according to this transcript in front of me is "I am, yes"?---I don't recall that, Mr Gilbert.
**** GRAHAM JOHN MUIR FXXN MR GILBERT
PN568
So you have never been called a private secretary?---Can I just clarify that, Mr Gilbert. I am employed for admin payroll. My payroll group under the award because there is no appropriate award classification and level of pay that I was paid under the wage skill of a private secretary, but I did not have the position of private secretary. I was employed as admin payroll. I was paid - - -
PN569
COMMISSIONER EAMES: Do you perform the duties of a private secretary?---No, I don't, your Honour. If I can just clarify that, your Honour?
PN570
Yes?---I do the books of account for Alcheringa, the financial books of account, and the payroll and write an occasional letter for the staff.
PN571
MR GILBERT: Can you remember, Mr Muir, the agreement that the ANF and the HSUA did with Alcheringa, the one that was the subject of this matter today? Can you remember that agreement at all?---I can, yes.
PN572
Can you remember what wage increases were in it?---Not fully without having to - no. I will say no.
PN573
If I said to you they were 4 per cent from February 2003, 4 per cent from February 2004 and 4 per cent from February 2005 does that sound correct?---It is probably right.
PN574
Can you remember what - and just going back a step. You have actually had a 4 per cent wage increase since that agreement was negotiated, is that also correct? Even though the agreement itself hasn't been certified you have actually had a 4 per cent increase since - you got an increase in February 2003, or thereabouts?---I don't recall that one.
PN575
Well, as payroll obviously you would presumably would if it happened?---I don't have the records before me, Mr Gilbert to clarify it.
**** GRAHAM JOHN MUIR FXXN MR GILBERT
PN576
All right, I will withdraw that. The LK agreement, the agreement between Alcheringa Hostel and its employees, are you aware of the wage increases in that?---Yes.
PN577
Would you tell me what they are?---Off the top of my head they were to be 4 per cent 2004, 4 per cent 2005, 4 per cent 2006 and 3 per cent from memory.
PN578
So it contains no wage increases between 2002 or 2004?---Well, I can't recall.
PN579
No. Because I think - anyway. And the Australian Workplace Agreements, what - am I allowed to ask that question? I don't know any more. I haven't had to deal with the things.
PN580
VICE PRESIDENT LAWLER: I think there is a problem with relevance anyway, isn't there, Mr Gilbert?
PN581
MR GILBERT: I am trying - yes.
PN582
VICE PRESIDENT LAWLER: What is a memory test of this witness in relation to what these agreements provide for, how is that relevant to anything? How is it even relevant to his credit?
PN583
MR GILBERT: No, the question relates - is intended to relate to the benefit that might flow to Mr Muir from those three separate agreements and to the extent that employees are expressing a view for a preference for one when the benefit to them financially is no different between the three.
PN584
VICE PRESIDENT LAWLER: Mr Muir, do you have a perception that the LK agreement is more beneficial to you financially than the LJ agreement?---My recollection, your Honour, is that the LK agreement had an additional 3 per cent at the end of it. I stand to be corrected, but it also had other beneficial clauses within the agreement that weren't provided for under the ANF agreement, the LJ.
**** GRAHAM JOHN MUIR FXXN MR GILBERT
PN585
So to the extent they overlapped in terms of the period they covered, they were the same and you think there is an extra 3 per cent tax on the end of the LK?---I think. I think but I stand to be corrected.
PN586
And there may be some other non monetary benefits in the LK?---Yes, yes.
PN587
Thank you.
PN588
MR GILBERT: And can you remember in respect to the LK agreement when it would expire?---From memory the LK goes to 2006, but I stand to be correct.
PN589
You didn't inquire about that when you wrote the letter?---In what respect?
PN590
In this perspective, it is my understanding it will go for three years from the date of its certification which means if it was certified in here next week it would go until late 2007.
PN591
DEPUTY PRESIDENT IVES: Mr Gilbert, you are going to have to tell us the point.
PN592
MR GILBERT: The point is very simply this, that Mr Muir has drafted up a letter that seems to be based on the assumption that the LK agreement - that we are holding up the benefits of an agreement to those employees when in fact if the Commission was to be minded to grant leave to appeal and uphold the appeal they would get that benefit quicker, or in the same time frame as the benefit that they now believe they are going to get out of the other agreements, so that their motivation may have been misguided in that sense. Perhaps I anticipated Mr Muir's knowledge in payroll would see him have more information in respect to enterprise agreements that might be applicable to his workplace than he does. I don't press any further questions.
**** GRAHAM JOHN MUIR FXXN MR GILBERT
PN593
DEPUTY PRESIDENT IVES: Yes, I am just not sure whether you are going to get anywhere with it, Mr Gilbert.
PN594
MR GILBERT: I don't appear to be - well - - -
PN595
DEPUTY PRESIDENT IVES: I mean short of calling everybody that signed this letter to ask them the question, I don't see where you can achieve that by questioning Mr Muir on it.
PN596
MR GILBERT: Well, the difficulty - yes, maybe I can't by questioning Mr Muir on it. The difficulty I have is the premise the letter is written under is potentially a false premise in that if it is their motivation to bring the matter to a conclusion and to get their back pay, then we say that is potentially more easily achieved by this matter here today being determined, end of story. We would all like to see it resolved, every last one of us.
PN597
VICE PRESIDENT LAWLER: Mr Gilbert, that is just incorrect. The fastest way to get this matter resolved, given that the money is the same in each case, is to discontinue the appeal, get SDP Kaufman to re-list the certification of the LK agreement and get it certified and that could happen within a matter of a day or two.
PN598
MR GILBERT: Well, I correct that.
PN599
DEPUTY PRESIDENT IVES: And the union to be a party if they wanted to.
PN600
MR GILBERT: We hold a position where we can be a party. Yes, we have the relevant instrument to achieve that. That is not in dispute. The LK agreement also contains provisions that we say allows the employer to do things that will see nurses become deregistered. We have other reasons for not supporting the LK agreement. I am quite open about that.
**** GRAHAM JOHN MUIR FXXN MR GILBERT
PN601
DEPUTY PRESIDENT IVES: Yes.
PN602
VICE PRESIDENT LAWLER: Well, that is a different matter.
PN603
COMMISSIONER EAMES: And you refer to that in your opening submission.
PN604
MR GILBERT: Yes, yes. And I don't - my understanding is the LK agreement imports the relevant parts of the - sorry the AWA imports the relevant parts of the LK agreement and the same result would follow that division 2 nurses could be directed to do things that we say would see them lose their registration and that they shouldn't be put in that position. So it is not - whilst it is upsetting for everyone and even our own membership that this matter has gone as long as it has, we are not doing it for some sort of personal gratification. I can assure everyone.
PN605
VICE PRESIDENT LAWLER: Right, okay. Thank you.
PN606
COMMISSIONER EAMES: It is about the dispensing of the medication.
PN607
MR GILBERT: Well, that is what caused the grief, in our view, that saw the withdrawal, or purported withdrawal from the agreement and a range of other matters that have flowed on from then. We believe we have acted in good faith. Clearly Mr Muir doesn't share that view. To the extent people have missed out on their wage increases through alternative options that might have been available, I don't think that should take away from our right to pursue our legal rights under the Act and that is what we - - -
PN608
VICE PRESIDENT LAWLER: Yes, and like, for example, Alcheringa voluntarily increasing the wages in line with the agreement as though it had been certified.
**** GRAHAM JOHN MUIR FXXN MR GILBERT
PN609
MR GILBERT: Well, my understanding is they have implemented the first one and that was evidence given by Mr Fisher in earlier proceedings who was the CEO prior to Ms Rough. I haven't checked to see whether that actually happened but that was my understanding. The back pay is for the second 4 per cent that they haven't yet got under the agreement and there is another one under this agreement that is due to kick in in February next year. We merely seek to do what is legally entitled for us to do under the Act and with no motivation of - or no nefarious motivation at all.
PN610
DEPUTY PRESIDENT IVES: We understand that I think, Mr Gilbert. It is really a matter of how far you want cross-examination of Mr Muir in the circumstances.
PN611
MR GILBERT: No, it was aimed on the misunderstanding that he had a greater knowledge of payroll than he clearly does, in terms of the implications for agreement that Alcheringa have either entered into or proposed to enter into. I have no further questions for Mr Muir.
PN612
VICE PRESIDENT LAWLER: Do you have any questions in re-examination?
PN613
MR DOUGLAS: No re-examination.
PN614
VICE PRESIDENT LAWLER: Thank you, Mr Muir.
PN615
COMMISSIONER EAMES: One question just before you go. You used the expression that you append the agreement - sorry, append the correspondence. It is an unusual description of what you do. Does that indicate that you actually wrote it out but someone helped you in the development of this correspondence?---Your Honours, the letter was drafted, drawn up, typed up, prepared by me personally. There was no-one else in the room when it was done, when the original draft which only had the Xs in instead of the actual
**** GRAHAM JOHN MUIR FXXN MR GILBERT
figures and percentages was then shown to the various staff around and they were asked to have a look at it and see whether they agreed with it, if they were happy with it and were happy to sign off. It was all done by me in my office with no-one else around at the request of four or five of the staff members.
PN616
I should have jumped in earlier and asked you that. Thank you.
PN617
PN618
VICE PRESIDENT LAWLER: Yes, Mr Douglas.
PN619
MR DOUGLAS: Thank you, Mr Muir. Your Honour, the other two employees who came down from Swan Hill with Mr Muir are Lyn Carmichael and Heather Parkinson. They have both sent me a message saying that they are more than happy to give evidence if the Commission wishes to hear them and they are in the court room. Both signed the document.
PN620
VICE PRESIDENT LAWLER: Mr Douglas, what is your position on the differences between the LJ and the LK apart from the obvious ones as to the parties?
PN621
MR DOUGLAS: Well, the first thing I have got to tell the Commission is that the legislation, or the regulations that the union was relying on in relation to the administration of medication has been changed so that that legislation or those regulations is no longer available to the union and what Alcheringa has been doing in the past and is currently doing in relation to medication is totally within the law, notwithstanding the decision of Ryan J.
PN622
The decision of Ryan J in fact led to the change of the regulations in this State. Would your Honour pardon me a moment. Mr Muir is correct in what he says about the LK agreement. If it is certified tomorrow it will operate for a period of three years. It has four wage increases in it, 4 per cent, plus 4 per cent, plus 4, plus 3, and it does have one or two provisions. I am not precisely aware of the provisions. One relates to special leave and I think the other personal leave provisions in it which are more beneficial to the employees than the LJ agreement.
PN623
They are really the only differences and of course the LK agreement permits Alcheringa - for the work that the employees are doing at the moment to be continued in that form. So they are differences between the two agreements. But essentially your Honour Vice President is right, that there is in reality no difference between the two, only in the sense that the LJ time would expire earlier than the LK but the LK has these extra benefits, including the extra 3 per cent.
PN624
COMMISSIONER EAMES: I think his Honour asked you about whether we need - what is going to happen with the two witnesses. You asked us.
PN625
MR DOUGLAS: Yes.
PN626
COMMISSIONER EAMES: What do we want to do. Well, that is for you, isn't it?
PN627
MR DOUGLAS: We would like them to be given the opportunity to give short evidence and I believe that they will say that their understanding of the letter and the signing of it is similar to what has been put to you by Mr Muir. So I would ask that - - -
PN628
VICE PRESIDENT LAWLER: We are just going to adjourn for a few minutes.
PN629
MR DOUGLAS: Thank you, your Honour.
SHORT ADJOURNMENT [4.07pm]
RESUMED [4.14pm]
PN630
VICE PRESIDENT LAWLER: Mr Gilbert, Mr Douglas made some assertions from the bar table about legislative changes, changes to legislation that have, summarising what he said, rendered irrelevant or odious or no longer applicable, your concerns about drug administration and the issue of registration. Do you disagree with what he said?
PN631
MR GILBERT: I agree that there have been amendments to regulations in respect to the Drugs, Poisons and Controlled Substances Act that might arguably even possibly and even probably exclude Alcheringa from that. What he hasn't said and what I had said that he hasn't responded to is two things. One is the nature of the proceedings that were before Ryan J included breaches of part XA of the Workplace Relations Act and that was because the award contained a provision that effectively said that an employer can't direct an employee to do something that is outside their skills, training and competence.
PN632
When they have drafted the LK agreement they have severed the award from the agreement, so that provision no longer exists and it also has a provision in it that enables the employer to take steps where an employee doesn't follow a direction.
PN633
VICE PRESIDENT LAWLER: In relation to the administration prescription of medication that is a question of fact, either they do or they don't.
PN634
MR GILBERT: Whether they do or they don't actually administer them?
PN635
VICE PRESIDENT LAWLER: Yes.
PN636
MR GILBERT: Or whether it is against the law?
PN637
VICE PRESIDENT LAWLER: No, whether it is within their skills, training or competence as a matter of fact.
PN638
MR GILBERT: It is a matter of fact.
PN639
VICE PRESIDENT LAWLER: And an employee under an LK agreement couldn't be required to do something outside their skills, training or competence either I would have thought as a matter of - - -
PN640
MR GILBERT: Except, your Honour, there is a significant dispute between that side of the table and this side as to the level of skills, competence and training you need. We adopt the Nurses Board view of what is necessary. They adopt their own personalised view of what is necessary.
PN641
COMMISSIONER EAMES: Is that contained within the agreements?
PN642
MR GILBERT: There is a provision in the award which read in accordance with our agreement will prevail if this agreement was certified. If their agreement is certified the award is completely severed and their agreement gets read alone, away from the award so that there is no provision that allows you to avoid it on that same basis if you like, the direction that we say would either be unlawful or so risky that a competent wouldn't follow the directive.
PN643
VICE PRESIDENT LAWLER: And the potential prejudice to your members is what?
PN644
MR GILBERT: That they will be directed to administer medications contrary to Nurses Board guidelines without the necessary education that the Nurses Board require. Having said that, I am aware that some of those nurses are undertaking what is now the course available for them to do it competently but they haven't done it as yet.
PN645
VICE PRESIDENT LAWLER: Mr Douglas, are you in a position to give an undertaking that the fear that has just been expressed will not occur, the scenario that Mr Gilbert has expressed concern about will not occur? That is, that nurses will not be directed to administer medications contrary to the Nurses Board guidelines.
PN646
MR DOUGLAS: The regulations allow division 2 nurses to administer medication, that is the change, and we require persons that have the necessary skill and training to administer medication to do so and that is what is currently happening and Alcheringa will continue to do that. The employees understand that.
PN647
COMMISSIONER EAMES: Is this the administration of drugs through these made up packs?
PN648
MR DOUGLAS: Yes.
PN649
COMMISSIONER EAMES: Is that what we are talking about?
PN650
MR DOUGLAS: Yes, yes. Little cups of pills at night time. Yes.
PN651
COMMISSIONER EAMES: Yes, okay. Well, it is a bit more than that.
PN652
MR DOUGLAS: Yes, but that is short form, yes.
PN653
COMMISSIONER EAMES: I was involved in a case that deal with all of that so I understand what is behind the concern and the difficulty is of course that regulations vary from State to State and Territory.
PN654
MR DOUGLAS: In Victoria division 2 nurses are able to do that now. The regulations have been changed. When Ryan J gave his decision the regulations prohibited it.
PN655
DEPUTY PRESIDENT IVES: This is providing it is within their skills, competence and training?
PN656
MR DOUGLAS: Yes, yes.
PN657
DEPUTY PRESIDENT IVES: And how is that assessed from the employer's point of view?
PN658
MR DOUGLAS: Well, like any other need to qualify to perform work within a given classification, your Honour, that the employer makes sure that the employee is appropriately trained and Alcheringa carries out training.
PN659
VICE PRESIDENT LAWLER: Mr Gilbert.
PN660
MR GILBERT: Can I - - -
PN661
VICE PRESIDENT LAWLER: Yes. Sorry. Mr Douglas, do you want to say something further?
PN662
MR DOUGLAS: Yes. And as I am instructed, that the Nurses Board will endorse division 2 nurses performing that activity if they have had the appropriate training and at Alcheringa they will have the appropriate training. That is the undertaking I can give the Commission, that no person that doesn't have the appropriate training will be required to carry out that work.
PN663
VICE PRESIDENT LAWLER: Appropriate training as specified by the Nurses Board?
PN664
MR DOUGLAS: Training which will allow the activity to be endorsed by the Nurses Board, yes.
PN665
VICE PRESIDENT LAWLER: Endorsed by the Nurses Board. Now, on that basis, Mr Gilbert, do you have a problem?
PN666
MR GILBERT: We are frightfully close to wherever this undertaking is heading us and that is that the Nurses Board under the amended legislation actually endorsed division 2 nurses once they have undertaken the education that they need to do to deliver medications. So they are actually endorsed under the Nurses Act. The Act has been amended. They are specifically endorsed, it appears on your registration.
PN667
So the simple answer for Mr Douglas to give would be that if it is a division 2 registered nurse who is endorsed by the Nurses Board of Victoria to administer medications then I am quite comfortable it is open to them to direct them to do that work within the scope of their practice. I think we are at little bit of cross purposes that there has been some words used that take us away from what the position is. The Nurses Board, direct nurses practice, as a nurse myself I am stuck with that predicament. Whether I like it or not I will lose my registration if I don't follow them.
PN668
VICE PRESIDENT LAWLER: If there was a problem with the way it has been expressed just articulate what it is and let us see if we can resolve it.
PN669
MR GILBERT: It is that the division 2 nurse to administer schedule 4 or 8 medications must be endorsed under the Nurses Act in Victoria.
PN670
MR DOUGLAS: Your Honour, I am instructed that Ann Rough, the CEO of Alcheringa, has forwarded a letter to all of Alcheringa's division 2 nurses stating that training will be made available to them so that they may be endorsed in accordance with the requirements of the board and I can - - -
PN671
VICE PRESIDENT LAWLER: And that those division 2 nurses will not be directed or required to administer those classes of medication unless they have the endorsement?
PN672
MR DOUGLAS: That is so and that practice will carry on into the future.
PN673
VICE PRESIDENT LAWLER: Are you happy with that, Mr Gilbert?
PN674
MR GILBERT: That is an appropriate undertaking, yes, for that issue. It certainly is, yes.
PN675
VICE PRESIDENT LAWLER: On the basis of that undertaking which is noted in the transcript, is there anything further that you wish to say on the question of leave to appeal?
PN676
MR GILBERT: I don't believe so, your Honour.
PN677
MR DOUGLAS: There is one thing that I wanted to say, your Honour, and that is that it is significant that the other union, the HSUA, is not here in these proceedings supporting the ANF.
PN678
VICE PRESIDENT LAWLER: We will adjourn for a minute or two.
PN679
MR BUNTING: Your Honour, just before you do adjourn.
PN680
VICE PRESIDENT LAWLER: Yes, Mr Bunting.
PN681
MR BUNTING: I don't wish to be heard on the question of leave but could I just take 30 seconds to correct something that I said before. It is in relation to Archer's case. The actual claim, clause 71 of the claim, is set out in the CLR volume 27 in the stated case at page 209, going over to 210. It doesn't alter the argument in a material way but the actual claim is there.
PN682
VICE PRESIDENT LAWLER: Thank you, Mr Bunting.
PN683
MR DOUGLAS: Could I just add to that, your Honour, that I was going to take the bench to what is set out on page 209 and 210 and it can be seen from that that the view put forward by Higgins J - - -
PN684
VICE PRESIDENT LAWLER: We are just going to deal with the question of leave now.
PN685
MR DOUGLAS: Yes.
PN686
VICE PRESIDENT LAWLER: And if leave is not granted then there will be no need to deal with these issues in any event on the part of the bench.
SHORT ADJOURNMENT [4.23pm]
RESUMED [4.24pm]
PN687
VICE PRESIDENT LAWLER: Mr Douglas, can we also have your assurance that you will press the application for certification of the LK agreement?
PN688
MR DOUGLAS: I can't give that, your Honour, and the reason for that is this, that we would like to but we have found that in it - and this is because of decisions by the Commission since Electrolux, we find that it has a salary packaging provision in it. That salary packaging provision is similar to the salary packaging provision that the ANF has in the Murray Bridge Agreement, for instance, which has been rejected. The certification of that agreement has been rejected because of Electrolux.
PN689
VICE PRESIDENT LAWLER: By?
PN690
MR DOUGLAS: By - - -
PN691
VICE PRESIDENT LAWLER: SDP O'Callaghan.
PN692
MR DOUGLAS: Could I give you the - it is in print PR52449 and it is the decision of Senior Deputy President O'Callaghan on 29 October of this year. Now, the ANF has appealed that decision.
PN693
VICE PRESIDENT LAWLER: The idea that a salary packaging provision doesn't pertain to the relationship is quite bizarre.
PN694
MR DOUGLAS: I would agree with that, your Honour, but we run the serious risk - we will press ahead with the LK providing that the union does not argue that it can't be certified because of the salary packaging provision.
PN695
MR GILBERT: Can I simply say as the union appealing decision in Murray River there is very little likelihood of that.
PN696
COMMISSIONER EAMES: You are in furious agreement.
PN697
MR GILBERT: I think so.
PN698
VICE PRESIDENT LAWLER: For what it is worth, the three of us certainly have not difficulty with the notion of a salary packaging clause being a matter pertaining and it is really a very odd course of reasoning that leads to the result because of the possibility that something might be included in the package that is a deduction of union dues, for example. But even applying the very strict, even the very narrow approach in Electrolux, it is hard to see how salary packaging is not squarely a matter that pertains to the relationship in the conventional sense.
PN699
In all the circumstances then we have come to the view that we ought determine the question of leave separately and we are of the view that in the exercise of our discretion we ought refuse the ANF leave to appeal. In doing that we do think that there is an arguable case for error in the decision and therefore the refusal of leave ought not be interpreted subsequently as an endorsement of every aspect of the reasoning of the member below.
PN700
It really ought be interpreted as a neutral statement, but the mere demonstration of error or an arguable case of error is not sufficient for a grant of leave. That merely enlivens the discretion and in the peculiar circumstances of this case, in particular the very peculiar circumstances of exhibit A1 on the application for leave to appeal, as further articulated by the evidence of Mr Muir, given the peculiar circumstance of the long history of the attempts at agreement making in this particular organisation and in the light of the undertakings and acknowledgments that have been forthcoming from the employer, we think that in all those circumstances in the exercise of our discretion we ought refuse leave to appeal. The Commission is adjourned.
ADJOURNED INDEFINITELY [4.29pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #A1 LETTER TO MEMBERS OF FULL BENCH FROM MR MUIR AND ATTACHED LIST OF SIGNATORIES DATED 02/12/2004 PN58
EXHIBIT #ANF1 APPEAL BOOK PN191
EXHIBIT #ANF2 EXHIBIT PFG12 TO AFFIDAVIT OF PAUL GILBERT PN193
EXHIBIT #ANF3 LIST OF TRANSCRIPT REFERENCES PN205
EXHIBIT #M1 OUTLINE OF SUBMISSIONS ON BEHALF OF MINISTER PN339
GRAHAM JOHN MUIR, SWORN PN421
EXAMINATION-IN-CHIEF BY MR TURNER PN421
CROSS-EXAMINATION BY MR GILBERT PN443
WITNESS WITHDREW PN524
GRAHAM JOHN MUIR, RECALLED PN556
FURTHER CROSS-EXAMINATION BY MR GILBERT PN556
WITNESS WITHDREW PN618
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