C2005/109, Transcript of Proceedings [2005] AIRCTrans 1227 (31 May 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11635-1

COMMISSIONER BLAIR

C2005/109

AUSTRALIAN NURSING FEDERATION-TASMANIAN BRANCH
AND
MINISTER ADMINISTERING THE STATE SERVICE ACT 2000
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/109)

HOBART

10.17AM, FRIDAY, 20 MAY 2005

PN1

MS C SAINT: I appear on behalf of the Australian Nursing Federation.

PN2

MR J MILBOURNE: I appear on behalf of the Minister Administering the State Service Act with MR TONY MARTIN.

PN3

THE COMMISSIONER: Ms Saint.

PN4

MS SAINT: Thank you, Commissioner. This is an application by the Australian Nursing Federation under the disputes settling procedure in the Nurses Tasmanian Sector Public Agreement 2004 which refers to clause 8 of the Tasmanian Public Sector Award 2003. The dispute concerns the late payment of a uniform allowance under clause 45 of the Nurses Tasmanian Public Sector
Agreement 2004. Do you have a copy of the agreement with you?

PN5

THE COMMISSIONER: Yes, I do, thank you.

PN6

MS SAINT: The agreement was actually certified by the Commission on 5 November 2004. The Australian Nursing Federation has attempted to resolve the dispute and the steps taken to date were that ANF first became aware of the dispute when members had attempted to resolve the issue with pay office staff but without success. There has been discussion between the Department of Health and Human Services and ANF on a number of occasions, but unfortunately the matter is not yet resolved. There has been correspondence between the parties and letters dated 2 February and 10 March from the Australian Nursing Federation to the department raised the issue and the non-payment of the allowance. I have a copy of those letters.

PN7

THE COMMISSIONER: Thank you.

PN8

MS SAINT: Further discussion has still not resolved the dispute so on 6 May an application was made to the Commission for assistance in resolving the matter. Just as a way of background, a very brief history was that nurses in Tasmania have been provided with a very limited uniform for a period of time. In fact that comprises for female nurses the provision of one white shirt but no trousers, skirt or any other item of clothing. Male nurses on the other hand were provided with a shirt and a pair of trousers.

PN9

There is provision under the Nurses Award, under clause 18.9 for the payment of an allowance but during consultation with members when we were compiling a draft claim for our recent enterprise agreement, nurses constantly raised their frustration with the limited provision of a uniform and they wanted a uniform. As a result there was a clause put into the EBA, which was a major clause, which pertained to provision of a uniform and in the absence of a uniform being provided for an allowance to continue.

PN10

The clause, as it appears in the document, the relevant portion is actually found under paragraph 45.1.1, the last paragraph of that first clause, and that states:

PN11

The uniform shall be provided within three months of the date of the certification of this agreement. Until such time as the uniform is provided the employees shall be paid an allowance in accordance with clause 25.1.2(a) or (b) from the date of certification of the agreement.

PN12

Nurses voted on the agreement on the understanding that the clear words of the agreement would, if they were required to wear a uniform, entitle them to receive a uniform allowance from day one of certification. A three month timeframe for provision of the uniform was inserted in order to ensure that the department took action to procure a uniform during the life of the agreement.

PN13

The Australian Nursing Federation do not believe there is any ambiguity with the wording of this paragraph. It clearly provides either for a uniform or for the provision of an allowance and the allowance shall be paid from the date of certification of the agreement. The date of certification was 5 November 2004. ANF members have raised the matter with their relevant pay offices and have been told it would be paid three months from date of certification. Correspondence between the department and the ANF has not resolved the issue.

PN14

The uniform allowance has recently been paid as of 5 February 2005 or thereabouts so payment is sought for the period of time from 5 November 2004 until the payment date that commenced in February and the Australian Nursing Federation seeks the assistance of the Commission in resolving this dispute. If the Commission pleases.

PN15

THE COMMISSIONER: What date did the allowance begin to be paid from?

PN16

MS SAINT: It was early February. I don't know the exact date. Mr Milbourne may be able to assist.

PN17

MR MILBOURNE: Commissioner, I believe it was paid to those nurses that were deemed at that stage to be required to wear a uniform from a date three months following the certification of the agreement.

PN18

THE COMMISSIONER: So 5 February.

PN19

MR MILBOURNE: 4 February.

PN20

THE COMMISSIONER: 4 Feb or 5th?

PN21

MR MILBOURNE: I think it was the 4th. Would that be three months?

PN22

THE COMMISSIONER: Depends how many fingers you've got, I suppose.

PN23

MR MILBOURNE: Probably not much hinges on it, I wouldn't have thought.

PN24

THE COMMISSIONER: 4th or 5th, either one.

PN25

MS SAINT: It was around about that. There was a little bit of confusion because it was delayed even to that date. I think it was paid back to 4 February.

PN26

MR MILBOURNE: Yes.

PN27

THE COMMISSIONER: Mr Milbourne.

PN28

MR MILBOURNE: Having heard what Ms Saint said, Commissioner, that stands up pretty well in terms of the facts of the situation. The wording of the agreement is as presented by Ms Saint, however, I think the intent of the parties in terms of why the three month clause was included needs to be stressed to some extent. My understanding of that rationale was that the uniform that was going to be provided, there was some doubt on behalf of the unions as to whether the department could actually furnish a uniform in that particular timeframe and, as such, the timeframes were suggested.

PN29

I think the original timeframe that was suggested by us was six months or
12 months. That was unacceptable. Then there was three months and the discussion then proceeded to look at what would happen should the uniform not be provided for those who were required to wear it. My understanding is that that's where the discussion in relation to the payment of the allowance came in. I've got emails and correspondence, some of which has been tabled in the exhibits that Ms Saint has provided, where it talks about the origin of the clause that she said.

PN30

If I can refer to the correspondence from Ms Cox to Ms Ellis on 25 February, the clause that was agreed there is quite different to the clause that finished up in the actual agreement. It says:

PN31

A uniform shall be provided within three months from the date of certification of the agreement -

PN32

and a bit that was added and agreed to was:

PN33

or until such time as the uniform is provided the employees shall be paid an allowance in accordance with 12.1 or 12.2.

PN34

So at 12.1.2(a) or 12.1.2(b), you will notice in your copy of the agreement that there is no (a) or (b). I think it's generally accepted that the clauses under 45.1.2, the first one that talks about $8.28 per week and the second one that talks about $6.85 per week would be the corresponding (a) or (b) that's referred to in the correspondence. That was a drafting problem and wasn't picked up by the parties at that stage, the point being there that the construction of that clause has an or between the first part of it in terms of the provision of the uniform within three months and the penalty, if you like, in terms of the payment of the allowance should that uniform not be provided.

PN35

Other factors that are relevant for consideration is clause 45.2 which requires the department to exercise a discretion in who is actually required to wear a uniform. That process is majorly completed but there are pockets of the agency where we haven't actually come up with a determination on who is appropriate to be required to wear such a uniform. So there is some question there as to, if we haven't decided who should have a uniform, then there's a question of when any such allowance for a uniform is actually provided.

PN36

THE COMMISSIONER: In the letter from Ms Cox dated 25 February 2005, it refers to clause 12.1.2.

PN37

MR MILBOURNE: Yes, okay. That adds to the history of the document and to provide a little bit of background, and please correct me if I'm wrong in any way, Caroline, the document originally was drafted up with the uniform allowance under clause 12. A subsequent reordering in the agreement placed it under clause 45. The clause, as it was, had changed a number of times and there were various iterations and correspondence, dialogue, emails which came to a flurry round about 20 July, I think, in some emails which talked about the inclusion of the or provision.

PN38

Previous suggestions in relation to uniform talked about reimbursement for the cost of the provision of a uniform. There was discussion in relation to that. Some of that dissipated when there was talk about the three month timeframe for the provision thereof and the tendering process that was required to actually undertake that.

PN39

I would submit to the Commission that in the department's view the uniform was intended to be provided within three months and that the penalty, if you like, if it wasn't provided was the payment of the allowance from that date, three months from the date of certification of the agreement.

PN40

THE COMMISSIONER: Right. Have you got a copy of the award?

PN41

MS SAINT: I do.

PN42

THE COMMISSIONER: Clause 9 of the certified agreement refers to clause 8 of the award and clause 8 allows the matter to be referred to the Commission. It doesn't say for what. It doesn't say for conciliation or arbitration or anything else, it just says referred to the Commission which actually doesn't empower the Commission to do anything, which is a bit strange. We get a dispute and we look at it and say, "Well, thanks, what do you want me to do with it?" you know, it's terrific. However, clause 9 of the disputes procedure in the agreement does say:

PN43

That in the event of a grievance, industrial dispute or matter likely to create a dispute over the application of this agreement, the procedure will be followed to resolve the matter in accordance with clause 8 of the award.

PN44

So in terms of any matter arising over the application of the agreement, it can be referred to the Commission but the award is silent on what powers the Commission has. I'm really not quite sure whether there is an agreement between the parties that in having the matter referred to the Commission in accordance with clause 8 of the award and read that in conjunction with clause 9 where it said:

PN45

Whether the matter over the application of this agreement -

PN46

Whether or not the parties agree that the Commission is empowered to determine the matter or whether they say, the Commission may wish to make a recommendation but that recommendation is not binding. So I'm really not quite sure where we go.

PN47

It might be something that you might want to consider in future agreements that the disputes procedure, if it does refer to the award, you should say in the agreement over the application of the agreement that the Commission is empowered to settle the matter. Ms Saint, what do you say those two clauses read together give the Commission the ability to do?

PN48

MS SAINT: I think you're right, Commissioner, that there is certainly some confusion about that. It would be my understanding that if there was a dispute over the application of the agreement that the Commission could assist the parties to resolve it, perhaps by making a recommendation as you suggest. Whether or not that would be binding, I would prefer to see that it was, but whether the power is there I am uncertain.

PN49

I was wondering whether section 111.1D of the Workplace Relations Act provided any assistance where it states that:

PN50

The Commission may do a number of things, including (d) give a direction in the course of or for the purposes of the hearing or determination of an industrial dispute.

PN51

THE COMMISSIONER: Yes, I understand that provision of the Act, but in this instance if you have an agreement or an award that both are silent on the powers of the Commission - the application is a 170LW which is in relation to the application of a certified agreement. The Commission can't take powers that an award or an agreement doesn't provide for it, particularly in regard to interpretation of the agreement. That's the difficulty. Both are silent on what powers the Commission actually has. A lot of agreements say:

PN52

It shall be referred to the Commission for conciliation and/or arbitration subject to the parties' rights of appeal.

PN53

Or it says:

PN54

It shall be referred to the Commission for determination subject to the parties' rights of appeal.

PN55

That then gives the power to the Commission to determine the matter. I'm not sure that 111.1D - - -

PN56

MS SAINT: We effectively fall short of getting there is what you're suggesting.

PN57

THE COMMISSIONER: Yes.

PN58

MS SAINT: Mr Milbourne may be able to comment further on this. I believe the dispute resolution clause that preceded this agreement in the 2001 agreement, and we have certainly had matters considered by the Commission previously, I'm not saying that makes it right but that would explain why this clause was not changed in this agreement. Perhaps Mr Milbourne could assist.

PN59

THE COMMISSIONER: What does the department say, Mr Milbourne?

PN60

MR MILBOURNE: Commissioner, I haven't actually looked at the previous dispute resolution procedures but I don't believe that they were previously changed and I think in terms of previous disputation or whatever, the matters were referred to the Commission but I think the same dilemma actually occurred, that there may have been recommendations or conciliation. I think your summation is probably correct that the matters can be referred to the Commission but it's unclear as to what, if any, powers the Commission has to deal with matters.

PN61

THE COMMISSIONER: Yes. Reading the clause, the Commission is of the view that there is no ambiguity in the clause. It's very clear. Reading the clause as it is, it says that the provision of the uniforms shall be provided within three months of the date of certification. Then it says very clearly:

PN62

Until such time as the uniform is provided, employees shall be paid an allowance in accordance with 45.1.2(a) or (b) from the date of certification of the agreement.

PN63

That is very clear in the Commission's mind. The allowance is to apply from the date of certification of the agreement until such time as the uniform is provided and that is expected to be within the three months.

PN64

So the Commission would recommend to the parties that in regard to clause 45.1.1 that particular clause, the allowance in the Commission's view should apply from the date of certification until such time as the uniform is provided, understanding that the uniform, it says, shall be provided which again puts an enormous pressure on the employer in this matter because it shall. It's not may be provided which allows you some flexibility so it's quite rigid.

PN65

So one assumes that the allowance should be provided until such time, and I understand it has now been paid, as either from 4 or 5 February. In the Commission's view the allowance should apply from the date of certification which was 5 November, up until the time it was begun to be paid, either 4 or 5 February 05. That's the Commission's recommendation to the parties. If there is any problem that arises out of that, give us a yell.

PN66

The Commission stands adjourned. Thanks.

<ADJOURNED INDEFINITELY [10.36AM]