BP2004/5083, Transcript of Proceedings [2004] AIRCTrans 5111 (24 December 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

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

TRANSCRIPT OF PROCEEDINGS


O/N 9485

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GAY

BP2004/5083

NOTICE OF INITIATION OF
BARGAINING PERIOD

Application under section 170MI of the
Act by Health Services Union of Australia
re initiation of a bargaining period at
Mildura Medical Imaging Pty Ltd t/as
Sunraysia Medical Imaging, 5 Heathscope
Court, Mildura Vic

MELBOURNE

10.00 AM, THURSDAY, 16 DECEMBER 2004

PN1

THE COMMISSIONER: We have had a conference in this matter. The transcript will reveal the length of the conference that has been had with the parties today and I must say it is very helpful to be able to endeavour to progress what is proving to be a most difficult negotiation. Now, Ms Cresshull, I understand that you - one appreciates, of course, Mr McNab's position, that he is not aided by the principal of this company, practice, and he is very restricted in his capacity for any independent action at all and, of course, also that is so in Mr O'Grady's absence.

PN2

However, representational issues to one side it is important that the parties come to grips with the final aspects of this negotiation. One cannot believe that it remains in its formative stages and it is very disappointing, very, very disappointing, to see that this is so. Now, Ms Cresshull, my understanding is you have received a document, which I am now going to call MCN1.

EXHIBIT #MCN1 DOCUMENT SETTING OUT PAY RATES

PN3

THE COMMISSIONER: It is from Mr McNab, and I won't go through what it is but it sets out some pay rates and you say it has got some very seriously unsatisfactory aspects because you don't understand how the pay rates are referable to duties that are actually performed and that gets back to an earlier request made by the union for a chart which sets out where people are presently graded referable to the award, referable to the duties that they perform, duties that can be understood as fitting within a particular classification, which then gives meaning to the pay rate.

PN4

My understanding is that it was the union's view that such a chart was to be, or piece of paper was to be forthcoming, not identifying the names of the individuals and it is going to be perpetually difficult it seems to understand what a pay offer is if it is given in respect of just some years of a grade and it isn't referable to particular work which can be clearly understood, otherwise it becomes almost impossible to take hold of the necessary issues that accompany any negotiation, that is what do you get for doing duties of a certain sort, particularly where the no disadvantage test has to apply and particularly where the Act encourages fair bargaining relative to close identification of what pay rates are intended to remunerate someone for doing.

PN5

Having received Mr McNab's - I don't know how coherent my summary is, but having received MCN1, Mc McNab's document that has some shortcomings, you now propose to or you wish to consider what it means, in the context of what your claim is, but also against the context of a classification structure that sets out increments within grades, all of which are referable to certain duties. Is that latter portion of what I have said the case?

PN6

MS CRESSHULL: That is correct, Commissioner.

PN7

THE COMMISSIONER: All right. Well, now you are - so I am going to hear from you because my understanding at the exit point of our conference is that you are going to provide some information really to be - to expand and develop MCN1 so that it can form, hopefully, a useful part of the negotiation. All right, Ms Cresshull.

PN8

MS CRESSHULL: Thank you, Commissioner. The union will undertake to provide by the close of business today a chart which details the pay rates which we are seeking, also comparing those to the pay rates that have been offered and the corresponding duties as detailed in the award structure. We also request a chart detailing the current pay rates that people are on in Mildura and the duties that they are actually doing so we can line them up together. And we request - - -

PN9

THE COMMISSIONER: You don't necessarily need these workers to be identified? I want to make that quite clear.

PN10

MS CRESSHULL: No.

PN11

THE COMMISSIONER: There may be some sensitivities in that respect.

PN12

MS CRESSHULL: Just to know how many people are paid at what pay point. So the dollar rate of pay with their duties and the numbers.

PN13

THE COMMISSIONER: And you are going to set this out on your - - -

PN14

MS CRESSHULL: And what Mildura Medical Imaging thinks that these people are classified as if they are classified at all.

PN15

THE COMMISSIONER: Yes, and your chart will set out various columns. It will be quite clear - can you make it as clear as can be because in the past there has been some regrettable misunderstandings about these things but it will be clear what it is that you want - as the picture develops of the work performed by workers at MMI it will be clear what you want in your chart, is that right?

PN16

MS CRESSHULL: That is right, Commissioner, and we will leave blank spots in the chart for MMI to fill in as to where they think their people sit now.

PN17

THE COMMISSIONER: Yes. Always referable to work of a certain sort. So attached to this is going to be - if someone is at grade 3 of your chart you will have alongside for someone, and it might be useful for the counsel involved, to think, oh, he is grade 3, yes, that is a person who is involved in nuclear medicine radiographic activity at this advanced level, for example, and the definition in the award, is that right?

PN18

MS CRESSHULL: That is correct, Commissioner.

PN19

THE COMMISSIONER: All right. Thank you.

PN20

MS CRESSHULL: And we also ask that we have their chart or their response to their chart detailing where people are currently paid and classified and a response to our chart by Tuesday the 22nd when the parties are meeting.

PN21

THE COMMISSIONER: Is that Tuesday the 21st?

PN22

MS CRESSHULL: Tuesday the 21st, Commissioner, beg your pardon.

PN23

THE COMMISSIONER: Yes.

PN24

MS CRESSHULL: And we also request that that meeting, hopefully, will include some of the executives or the managers of Mildura Medical Imaging as well as their counsel.

PN25

THE COMMISSIONER: Yes. Now, and perhaps it will make the record a bit more coherent if there is some background to that date. Mr McNab is - as the festive season approaches Mr McNab has indicated that Mr O'Grady is available on the morning of that day, Tuesday the 21st, so it is very helpful, Ms Cresshull, if your material goes in, as you say, later today.

PN26

MS CRESSHULL: Yes.

PN27

THE COMMISSIONER: That sets out those things, and you are asking, as I understand it, that prior to the Tuesday some response come to you so that you can give it some thought when you attend the meeting, because I am aware that there has been a series of meetings: there have been two that the Commission has been involved in in Mildura; there have been others in Mildura, most recently with counsel, where two days was allocated and I am told that it lasted for a very short time, not one hour.

PN28

MS CRESSHULL: That is correct, Commissioner.

PN29

THE COMMISSIONER: I am conscious that there can be serious disruption in Mildura if this negotiation fails and it is not - I am keen to see the principle objects of the Act applied. I have been told by authorised officers of the company that they are keen to reach an agreement and they really do take a positive prospective view and I have got no reason to doubt that except that here we are and I am worried there hasn't been further ground gained. Now I do hope, Mr McNab - I will hear from you in a moment but I might as well tell you what is on my mind - it is going to be very important that this meeting on Tuesday the 21st really comes to grips with the current position of the work that is performed up there and deals with the claim of the union.

PN30

It may accept it in part, it may accept it in full, it may reject it, I don't know, but anything that is put by the company will have meaning because the union will be able to convert a pay rate on a piece of paper to duties that are actually performed and what the legal minima are and what the bargaining regime has produced for we know similar workers which the union says should be very persuasive and obviously employers will say sometimes something quite different. But if that can be given, sent along, even some short time prior to the meeting with Mr O'Grady so that they can look at it and make the most of Tuesday.

PN31

One knows that that is a make or break meeting because the new year will intervene and the frustrations that you have heard about in the conference are going to build and it will be very counter-productive for Tuesday the 21st not to be - come up with something that the parties can really say represents a considered fair dinkum effort to resolve this. As part of that it would be - I think it will be very helpful indeed if there is an authority figure from MMI present with Mr O'Grady so that there can be actually some discourse between the negotiating parties rather than the flat-footed exchange of positions or requirement to go back and get more information which then means no real progress is made when negotiations, as everyone knows, are dynamic and fluid and it really needs people to sit down and have a talk and work through what they can do.

PN32

Sometimes a course B in the alternative to course A, of course, and if no one is there and it is Mr O'Grady doing the very best he can but requiring instructions at every inch of the way it will mean Tuesday will be stillborn and that is not in anyone's interests. So, Mr McNab, will you please pass on to your client the Commission's view. I am not going to make - not having compulsory conferences, we are not having any of those things, because everyone is - you once again have indicated the parties are - your clients are keen to have an agreement and wants to have an agreement.

PN33

It indeed comes to the table with completely clean hands and is an active willing participant. Now it will be very helpful for Mr O'Grady to be supported by a member of the practice on that day so he can actually grab hold of the issues. They have been a bit slippery and slithery, these issues, and we really need to grab hold of them. So that is Tuesday the 21st.

PN34

MR McNAB: Just in relation to the information to be provided.

PN35

THE COMMISSIONER: Yes, Mr McNab.

PN36

MR McNAB: There was a comment made by you that I interpreted as don't need to actually know the names of employees but basically you need the information to set out what - sufficient so an employee can identify what their classification is and what their - - -

PN37

MS JACKSON: But even if the employer puts that chart together, employee A, B, C, D, whatever, but then that employee should then have that information.

PN38

THE COMMISSIONER: Well, Mr McNab, this is not a large employer and the - I don't know whether authorities have been handed over or been sought and membership lists - there is some sensitivity about who is a member and who is not and there is some sensitivity on the part - a counter-veiling sense, as I understand it, on the part of MMI to give the union charts that show where everyone is. Now if that is not right, well, then there will be full disclosure. If it is right it will have to be done more carefully. But I wouldn't have thought there could be any doubt that an employee of this practice who goes along and says, well, what am I, they have got to know what they are, what their classification in their work is.

PN39

It is 2004. Now it is not 1953 where someone is told, you know, you make 10 quid a week, that is what you are old boy. There is an award. The no disadvantage test will be applied very carefully, but people need to know. They need to know what their rates are. The union have got rights of - if they consider there is a breach, as you know they can make the necessary proper approach. I can't imagine why initially without necessarily identifying everyone - the union knows in respect of its members. You would have a fair grasp but you need to know what the employer's understanding of the grading of a position is. The rightness of someone's grading depends on what they do.

PN40

MS JACKSON: But also where the employer thinks that employee is going. That is what the translation is about.

PN41

THE COMMISSIONER: Well, that is right. There is - what incremental advance. These are all so basic as to be almost infantile. That if you are - - -

PN42

MS JACKSON: Because they are dollar people, that is what you need to know. They are just dollar people.

PN43

THE COMMISSIONER: But, Ms Jackson, if someone is a second year radiographer, well, what - in the contemplation of the employer is there progression, pay progression, what career paths is open to them, what is automatic. Is some of it conditional upon them getting a higher qualification. I mean, all those basic elements go to make up both fair schedules but also pay schedules that are simply understandable. We don't exist in a - there is not a veil of tears up there with some fog. There will be no fog. How can you have an agreement that says - well, I suppose you could but it would be highly undesirable, but it has got to be assessed against the no disadvantage test and against someone's legal - it has all got to be enforceable and what their legal minimum entitlements are.

PN44

But Mr McNab knows that and these are the things that I hope this document on Tuesday will really - it will be like a theatre smoke machine except it will be removing all the smoke. It won't be pushing it out on the stage, it will be removing it.

PN45

MR McNAB: If there is any - I spoke with Mr O'Grady on the telephone and he said that he was available in the morning of Tuesday. It looks like there is a fair bit of action going to occur between then and now. If there is any hiccups is there some mechanism we can contact the Commission and - - -

PN46

MS CRESSHULL: It won't take long. There is not many of them. Our part of the exercise - - -

PN47

MS JACKSON: It won't take us long to do.

PN48

MS CRESSHULL: There is like 20, 25 of them.

PN49

THE COMMISSIONER: I think this work is, Mr McNab - - -

PN50

MS CRESSHULL: We have done most of it.

PN51

THE COMMISSIONER: - - - is doable if someone sits down with an hour and actually wants to do it. You can map it out as we have all done. If you get your charts with all the columns you can work out who is where. You look at - even if it is a beginner you look at the position descriptions to which the work is referable and you work out where you are. If there is some uncertainty you ask someone, well, what does - - -

PN52

MS JACKSON: But the employer has been saying for a long time to us, months, that it will take a long time for them to get their information. That is why it has been always held up.

PN53

THE COMMISSIONER: It will all be to hand now. No, but this is day - - -

PN54

MR JACKSON: But they have done it. They have got it.

PN55

THE COMMISSIONER: Well, Ms Jackson - well, it is all - there is a lot of water that has passed under the bridge and it would be inconceivable that all this careful forensic work hasn't been done because there have been assurances that close identification of these issues has been undertaken. Now, Ms Jackson, my understanding is you are the secretary of the union. To permit this to occur you are prepared to, at the moment, forsake - there is no threat - perhaps could I put it that way, Mr McNab doesn't leave today - there is no imminent industrial action but you say you are looking for real advance on the Tuesday, is that right?

PN56

MS JACKSON: That is right.

PN57

THE COMMISSIONER: All right. Well, Mr McNab, is there anything else you want to say about this?

PN58

MR McNAB: No; no, thank you.

PN59

THE COMMISSIONER: No, all right. Now, Ms Jackson, I do say that it is important at the end of Tuesday, at some stage can you please put a report down to me so it can go on the file, because I would want to know how Tuesday went. I will not be taking a passive role in this. I am concerned now about the potential for this to come seriously off the rails and there is a public interest element in all these things and this is not an academic exercise. I do want you to tell me how it is going and then what the future plan is and I will pay close regard to that on Tuesday.

PN60

MR McNAB: Sorry, is the meeting in the Commission or here? What are you proposing in terms of the meeting?

PN61

MS CRESSHULL: Are you available - - -

PN62

MS JACKSON: Are you available on Tuesday, Commissioner?

PN63

THE COMMISSIONER: No, no, I have got a series of appalling - but you can - we can make a room available here if that is - - -

PN64

MS JACKSON: That would be suitable.

PN65

MR McNAB: Yes, that would be better.

PN66

THE COMMISSIONER: All right. My associate will book a conference room and it will appear on the list. If necessary ask and I will come in and out and see how you go. All right. We will adjourn now to a date to be fixed.

ADJOURNED INDEFINITELY [10.17am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #MCN1 DOCUMENT SETTING OUT PAY RATES PN3