AG2005/3512, Transcript of Proceedings [2005] AIRCTrans 1543 (18 July 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12119-1

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2005/3512

APPLICATION BY FLORA MCDONALD LODGE & AUSTRALIAN NURSING FEDERATION-SOUTH AUSTRALIAN BRANCH
s.170LS - Agreement about industrial dispute (Division 3)
(AG2005/3512)

ADELAIDE

2.32PM, TUESDAY, 05 JULY 2005

PN1

MR K EDWARDS: I appear on behalf of the Australian Nursing Federation.

PN2

MR T DAVIS: I appear on behalf of Flora McDonald.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, this application was originally the subject of what I call an e-hearing whereby questions about the agreement and the process were emailed out to the parties and responses were received within the designated time. The only clause about which I remain in doubt is clause 15 which relates to additional annual leave and the only question I have about that particular clause is the extent to which there is ambit within the dispute finding referenced by the parties in this matter as underpinning the jurisdiction so as to found this Division 3 application. At the outset, I need to indicate that whilst I appreciate Ms Edwards' instructions might be to rely upon the existing jurisdictional foundation for the agreement. If the parties wished I would be happy to consider the agreement under the context of section 170LJ and Division 2 of Part VIB.

PN4

In that regard the process set out in section 170LJ is the same as the process which was followed in this particular matter so there would be no need for a further vote or anything other than for advice to the effect that the parties want to rely on that particular Division 2. As it stands, if I am to rely on Division 3 then I need in accordance with the decision of the Commission in Schefenacker, to be satisfied that the ambit exists within which I can consider the agreement. The responses from the parties reference the responses that have been emailed to me by the parties, reference the capacity to compare this particular annual leave arrangement with the capacity to convert unused sick leave in the agreement. I am afraid I can't easily draw a link there but I am very happy to be persuaded to the contrary so that I hope that sets the foundation for this hearing this afternoon. Ms Edwards, do you want to go first? If you do, please don't stand up.

PN5

MS EDWARDS: Thank you, sir. I guess we are in a bit of a quandary ourselves in that we would argue that clearly annual leave and sick leave are both in the log of claims and therefore whilst I acknowledge that it doesn't link the two together, we would argue I guess that they are both in the log of claims. It hasn't been exceeded and we would think or hope that it should be improved in that manner. My understanding in regards to an LJ though is that Flora McDonald isn't a constitutional - - -

PN6

THE SENIOR DEPUTY PRESIDENT: Are they not a constitutional corporation?

PN7

MS EDWARDS: No, they are - - -

PN8

MR DAVIS: Not for profit organisation.

PN9

THE SENIOR DEPUTY PRESIDENT: I see. That doesn't necessarily preclude them being regarded as a constitutional corporation, Mr Davis. What needs to be satisfied in that regard is the extent to which the organisation derives a substantial portion, and I use that word, substantial, with a degree of caution, of its income from so called commercial activities. The reason that I am raising a question in that regard is that I would have thought the payments that, if I go back a few years, I personally have made to that organisation to fund a persons accommodation might be considered in that regard. If you say to me, that cannot be then I am happy to take that on board.

PN10

MS EDWARDS: We would need to further investigate that, ..... that Anglicare are in the same position and didn't they do -they do an LJ I think, so maybe that can be counted.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I am very happy to consider that. I can simply indicate to you that the approach generally adopted in terms of looking at the corporate status of an organisation is outlined in some detail by Senior Deputy President Polites in a matter some years ago involving the Esperance Shire Council in Western Australia. If you can't identify the print number for that particular matter, feel free to contact my office and we will get it for you.

PN12

MS EDWARDS: In line with that, sir, I guess that if we were to establish that and you were not satisfied with the answers that we have already given you, we don't actually have any of the - I ..... saying that and we probably we didn't ..... parties to well within the parties to consider if we are able to make the application as an LJ. If you are not satisfied with what we have already said.

PN13

THE SENIOR DEPUTY PRESIDENT: All right. Well, Ms Edwards, can I make a suggestion then and that is that I will take the matter away and ponder upon it but it might be also wise that you start the ball rolling in terms of considering the extent to which you can both be satisfied that you can put material to me so as to establish the status of the Flora McDonald. If it helps at all I can indicate to you that I am aware of numerous not for profit organisations in particularly Western Australia that have unquestionably been brought under the umbrella of Division 2 agreements. So it's simply the reality of it being a not for profit organisation doesn't preclude consideration in that context and indeed, the same logic applies to local government. Local government seldom operates on a not for profit basis much to the chagrin of residents and ratepayers at times. Mr Davis, are you happy with that approach?

PN14

MR DAVIS: I am.

PN15

THE SENIOR DEPUTY PRESIDENT: How long will you folks need to ponder upon the corporate status issue?

PN16

MS EDWARDS: We would like to do this sooner rather than later because - - -

PN17

THE SENIOR DEPUTY PRESIDENT: Well, I am in your hands. Yes.

PN18

MS EDWARDS: It's just that these people aren't actually getting paid until the day of the certification so that's disadvantaging them.

PN19

THE SENIOR DEPUTY PRESIDENT: I see. Yes. I was going to say I am away all of next week so if you could have something to me by Friday, that might help.

PN20

MS EDWARDS: And if we were able to substantiate that that could be an LJ we could just then resubmit, not - - -

PN21

THE SENIOR DEPUTY PRESIDENT: You don't need to resubmit anything. All we need to do is to, in this instance, write me a letter asking, jointly, as the applicants in the matter for the application to be considered as a Division 2 agreement. Now, you will need to provide me with some information that substantiates the corporate status of the employer. I don't require any new material to be filed in the Commission and no new vote as long as you don't change the agreement.

PN22

MS EDWARDS: No, I understand that. But we would have to submit the correct forms at the time.

PN23

THE SENIOR DEPUTY PRESIDENT: I think we can manage to change LJ to LS as it appears to have been changed once before. All right. I will adjourn the matter on that basis.

<ADJOURNED INDEFINITELY [2.42PM]