C2004/6461, Transcript of Proceedings [2005] AIRCTrans 160 (25 January 2005)

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TRANSCRIPT OF PROCEEDINGS


O/N 9661
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER CRIBB

C2004/6461

PRIVATE HOSPITAL ADMINISTRATIVE
OFFICERS - VICTORIA AWARD 1996

Application under section 113 of the Act
by Health Services Union of Australia to
vary the above award re increasing minimum
wages and work allowances

MELBOURNE

10.16 AM, MONDAY, 20 DECEMBER 2004

Continued from 8.12.04

PN29

MR S. ROBERTSON: I appear on behalf of the Health Services Union with DR R. KELLY.

PN30

MR P. EBERHARD: I appear for the Victorian Employees Chamber of Commerce and Industry.

PN31

MR G. FRAUMANO: I seek leave to appear for the clients of Jenny Fraumano and Associates.

PN32

MR B. SULLIVAN: I appear for VHIA.

PN33

THE COMMISSIONER: Mr Robertson.

PN34

MR ROBERTSON: Commissioner, this is an application to vary the Private Hospital Administrative Officers Award 1996. This application includes two years of safety net adjustments. It is made under section 113 of the Act, includes the Full Bench decisions of May '03 and '04, that is PR002003 and PR002004. The application, notice of listing and draft order were served on the parties in accordance with the order for substituted service on 7 December. The HSUA gives the undertaking required by the statement of principles in respect to absorption.

PN35

There are multiple variations occurring here due to the two years of adjustments and these are made per an agreement with the Victorian Chamber of Commerce, which Jenny Fraumano and Associates have had no objection to and that is outlined in a declaration by Craig Thompson, which I believe you have on file.

PN36

THE COMMISSIONER: What does the declaration say, Mr Robertson?

PN37

MR ROBERTSON: I have a copy of it here, which I can hand up.

PN38

THE COMMISSIONER: That might be helpful. Thank you. What was the declaration regarding?

PN39

MR ROBERTSON: It was basically just stating the position that there was an agreement between VECCI and the HSUA made by Kerry Seymour of the HSUA and Janet Whitecross of VECCI.

PN40

THE COMMISSIONER: I don't have that. I have nothing - - -

PN41

MR ROBERTSON: I do have a copy here. If you could bear with me for a moment, I should be able to produce it.

PN42

THE COMMISSIONER: That is fine.

PN43

MR ROBERTSON: If the Commission is satisfied that the application is in line with the principles - sorry. I also have to give you the statement of service and facsimile transmission receipts. And I would ask that the Commission grant the application if there is no opposition. Thank you.

PN44

THE COMMISSIONER: Thank you, Mr Robertson. Have the other parties received your draft order?

PN45

MR ROBERTSON: Yes, they have. The draft order was forwarded to the Commission also after the 8th.

PN46

THE COMMISSIONER: Thank you, Mr Robertson. Mr Eberhard.

PN47

MR EBERHARD: Commissioner, when this matter was last before you, VECCI advised both yourself and also the HSUA that we wouldn't be opposing the application for the safety net adjustment for the 2002 adjustment and that has now gone - theoretically, it has gone through in the sense that the order hasn't been issued. We maintain our objection to the 2003 and 2004 being granted at the one stage. I have now spoken to Ms Whitecross. Can I say I haven't seen Mr Thompson's declaration so I am not in a position to give direct comments in regards to that but I spoke to Ms Whitecross on Friday and she did advise me that there was no agreement reached in regards to that. But the primary motivation in regards to our opposition is in regards to principle 8(c) of the wage fixing principles and that is that - well, 8(b) and (c). And (b) provides that:

PN48

...at least 12 months have elapsed since the rates in the awards were increased in accordance with the safety net review.

PN49

Well, it certainly passes that test. In regards to (c):

PN50

In awards where the variation for a safety net adjustment arising from the April 1999, May 2000, May 2001, May 2002, May 2003 or May 2004 decisions is by consent and does not result in an increase in the wage rates actually paid to employees or increase the wage costs for an employer any applicable 12 months delay between variations may be waived.

PN51

Well, I would submit, Commissioner, that in respect to that, we haven't had any information put to you that actually demonstrates that there would not be an actual increase in the wage rates of pay. So on that sort of basis, the Commission, I would submit, cannot be satisfied under the statement of principles that there would be an increase that would be over and above the single yearly increase, which is envisaged within the safety net adjustment review situation system. So on that sort of basis, we maintain our objection.

PN52

However, if the Commission does not find favour in the arguments that we put, I have been involved in previous decisions by various Commission members where the Commission has, in fact, actually granted the applications but has phased the applications in rather than made them all collectively operative on the one date. So if the Commission does decide that there is justification for an increase for the 2003/2004 safety net, our preference would be - whilst we oppose it, our preference would be that the Commission phases that in over the next 12 months so that whatever cost there is to the employers is at least minimised in that sort of respect. And there is a decision by Commissioner Lewin that the Commission might like to look at, which is a decision in regards to the - I am just trying to remember the name of the award now.

PN53

THE COMMISSIONER: You are doing well, Mr Eberhard.

PN54

MR EBERHARD: Well, having been directly involved in it, it is one of those things that sort of comes back to you. But it is one of the recreation grounds and it actually involves the employees who are the attendants, etcetera, at racecourses. I can't remember the specific name of it but, as Commissioner Lewin said in that, it is an intellectual exercise that we must put ourselves through in this situation; it is not an exercise of anything else in that sort of regard, because they were in a different situation in that a significant number of the employees there were getting paid less than the minimum wage. So the minimum wage was a factor in regards to that.

PN55

But in this instance, we certainly oppose it and we say that there is evidence before the Commission in this instance to say that there is justification for the granting of all the applications at the one time. However, if the Commission doesn't find favour in that, we would submit that the Commission should look at a phasing in of the increases over the next 12 months so that any cost impost that is placed upon an employer has at least some sort of longevity to it and is minimised in that sort of respect. If the Commission pleases.

PN56

THE COMMISSIONER: Thank you, Mr Eberhard. If my memory serves me correctly, where I left the parties when we had round one of this matter was that there was going to be discussion between the parties about the very issue that you have just talked about. By the look of it, this hasn't happened.

PN57

MR EBERHARD: In regards to the situation of whether or not the wage fixing principles have been satisfied - - -

PN58

THE COMMISSIONER: Yes.

PN59

MR EBERHARD: - - - we have certainly put that view to the HSUA but I think the HSUA are relying on the fact that there is an alleged agreement between the HSUA and VECCI as to that the increases would be phased in - I shouldn't say phased in - would be inserted into the award once the award has been simplified. Now, the award at this stage is still yet to be simplified and that is one of the matters that is before Commissioner Grainger, I think, and at this stage there is no simplified version of the award. As you would see, the award is the 1996 award, I think.

PN60

THE COMMISSIONER: Yes, it is.

PN61

MR EBERHARD: And at this stage there is no simplified decision or decision in respect to any of the matters contained under item 51 of the Act.

PN62

THE COMMISSIONER: Okay, but how does whether the award is simplified or not affect an agreement that the HSUA think they have with VECCI about doing two safety net adjustments at once?

PN63

MR EBERHARD: Well, I don't think it does because irrespective of whether you are looking at a simplification or an application to vary, the wage fixing principles still govern in regards to the overall process. And what I am saying in regards to principle 8(c) is that where the Commission can be satisfied that there is no actual increase, then the Commission is at liberty to make that decision and to make that variation. Where it cannot be satisfied, irrespective of whether or not there is consent or not, I don't think that the Commission is in the position where it can approve such an increase because I don't think the principles allow for that.

PN64

So even though we may stand at the bar table and say that everything is hunky dory, the Commission has to be satisfied in that regard that everything is AOK and, if it isn't, then we are in the position where we need to present evidence and material to the Commission to satisfy the Commission that everything is all right.

PN65

THE COMMISSIONER: Okay. But as Commissioner Lewin has said, and particularly, I think, with respect to this award, my understanding is there are agreements sitting on top of it, it may well be an intellectual exercise. So it is a question of how you define "Commission must be satisfied". Now, do you have any contribution to make on whether this will result in wage increases to your members?

PN66

MR EBERHARD: I am of the view, speaking to at least one of them, that there is - - -

PN67

THE COMMISSIONER: A cost impost?

PN68

MR EBERHARD: Well, there may be but it is a may in the sense that they tend to have AWAs in the particular area. So the AWA, one would presume, would override the award in that sort of sense, but it would depend on when the AWA ceases and passes its nominal expiry date because then there could be a fairly significant increase in the sense that we are talking about an increase that is going to be $19, it is going to be probably $17 and $18, so we are talking in the order of a $54 increase that is going to be impacted virtually within two or three weeks.

PN69

So that amounts to a significant amount of money that then may need to be passed on to the employees. If there was another agreement reached in January of next year and this application was made, then the wages would need to be adjusted upwards in that sense, so there would be an actual cost if you were only at a - if you weren't at a higher level as - - -

PN70

THE COMMISSIONER: Yes, if you weren't that amount above - - -

PN71

MR EBERHARD: Yes. It is a bit hard to sort of argue in that sort of sense. So there could be but I am of the view that there probably wouldn't be but, as I said, there is no material before the Commission to satisfy that requirement.

PN72

THE COMMISSIONER: Thank you, Mr Eberhard. Mr Robertson.

PN73

MR ROBERTSON: Commissioner, we were of the understanding that we had an agreement which took place during the discussions regarding the award simplification, that those rates would be included as they hadn't been updated in three years, so we were of that view. However, Mr Eberhard seems to dispute that.

PN74

THE COMMISSIONER: Yes, he does.

PN75

MR ROBERTSON: I am just wondering whether Mr Fraumano had any knowledge of the agreement or any discussion that took place regarding the inclusion of those rates during simplification or prior to.

PN76

THE COMMISSIONER: Mr Fraumano.

PN77

MR FRAUMANO: Yes, Commissioner. Unfortunately, we weren't involved in the earlier hearing here. We haven't yet received, I believe, the draft orders. What Mr Robertson is saying is reasonably correct in that we did agree to the incorporation of the safety nets during the - - -

PN78

THE COMMISSIONER: Of both?

PN79

MR FRAUMANO: Remember that the discussions that we had regarding the simplification process were two years ago.

PN80

THE COMMISSIONER: Yes.

PN81

MR FRAUMANO: And there has been a considerable elapsed and other safety nets included since that period. So we would rather get a copy of the orders and, if possible, allow us seven days to seek directions.

PN82

THE COMMISSIONER: Mr Fraumano, there is no difficulty with you having an opportunity to peruse the draft orders. That is fine. It is really - I am not actually at that point yet. If I can go back a step, the Commission has before it an application to vary the award for two safety net adjustments at once, 2003 and 2004. Is there any objection on behalf of your clients to both those increases going through at the same time?

PN83

MR FRAUMANO: Unfortunately, Commissioner, we haven't had a chance to confer with our clients regarding that matter because, as I said, the agreement we had made earlier was in regard to the simplification process two years ago and there has been another award simplification now included above that. There may or may not be an objection after conferring with our clients. But the agreement, as Mr Robertson stated, is in existence from the - but that is now two years old and there is an extra cost impost, perhaps, on our clients since then, so I would rather leave it there.

PN84

MR ROBERTSON: Commissioner, we would state the position as well, as Mr Eberhard stated, that this area is largely regulated by AWAs and is unlikely to cause a real increase as mentioned in principle 8 of the wage fixing principles. However, we would also like to put forth that in light of that agreement that that would be waived by the Commission either way. So I will leave that to you to decide.

PN85

THE COMMISSIONER: Thank you, Mr Robertson. Mr Sullivan, would you like to - - -

PN86

MR SULLIVAN: Sorry, Commissioner, I withdraw my appearance. I didn't hear the announcement of this matter.

PN87

THE COMMISSIONER: Yes, I was wondering why you wanted to be in this one.

PN88

MR SULLIVAN: No, no, sorry. I thought it was the Public Sector one. I withdraw my appearance.

PN89

THE COMMISSIONER: You are excused, Mr Sullivan. Could we go off the record for a moment, please.

OFF THE RECORD

PN90

THE COMMISSIONER: Following discussions off the record between the parties, I have been able to progress with this matter. This matter is an application by the Health Services Union of Australia to vary the Private Hospital Administrative Officers - Victoria Award 1996 to give effect to two Safety Net Review decisions. The first one is the 2003 Safety Net Review decision and the second one is the 2004 Safety Net Review decision. The applications are not opposed by the other parties on the basis that will become evident in a moment. Having heard the submissions of the parties, I am satisfied that both applications meet the requirements necessary to grant the safety net adjustments.

PN91

Accordingly, the union's applications are granted. The award shall be varied in terms of the draft order and the parties are to settle the terms of the draft order within seven days. The variation for the 2003 safety net adjustment will take effect from 8 April 2005 and that is from the first pay period commencing on or after 8 April 2005. And the variation for the 2004 safety net adjustment will take effect from the first pay period on or after 8 August 2005. On that basis, the Commission stands adjourned.

ADJOURNED INDEFINITELY [10.39am]