D2002/9, Transcript of Proceedings [2005] AIRCTrans 2405 (25 November 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 13422-1

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

D2002/9

APPLICATION/NOTIFICATION BY AUSTRALIAN NURSING FEDERATION
s.204(1) - Application for alteration of eligibility rules
(D2002/9)

ADELAIDE

10.09AM, MONDAY, 14 NOVEMBER 2005

Continued from 25/8/2005

PN90

THE SENIOR DEPUTY PRESIDENT: Good morning. Are there any changes in appearances from the last time this matter was heard before me?

PN91

MR WHITE: I still appear for the ANF, your Honour.

PN92

THE SENIOR DEPUTY PRESIDENT: I won't need to take additional appearances Mr White then. I note that the parties have provided to me a substantial amount of material. The material provided by the ANF consisting of the written outline of argument provided on 22 September and a statement from Mr Bonner, I would propose to mark the outline of argument now and to advise the parties that I have read that. It is probably best that we continue the same numbering system as the parties appear to be headed for some form of internal record in that regard and I would hate it to lose count, Mr White.

EXHIBIT #ANF106 OUTLINE OF ARGUMENT
EXHIBIT #ANF107 OUTLINE OF SUBMISSIONS IN REPLY TO THE LHMU AND SOUTH AUSTRALIAN CHAMBER OF COMMERCE SUBMISSIONS
EXHIBIT #LHMU29 OUTLINE OF ARGUMENT PROVIDED BY THE LHMU ON 13/10/2005
EXHIBIT #BSA36 OUTLINE OF SUBMISSIONS OF BUSINESS SA

PN93

THE SENIOR DEPUTY PRESIDENT: Mr White, I think it should be possible for us to plan to complete the matter today.

PN94

MR WHITE: I would have thought so, your Honour.

PN95

THE SENIOR DEPUTY PRESIDENT: I can advise you that I have read all of the material provided to me.

PN96

MR WHITE: There is one document that we filed you didn't mention, your Honour, which I hope has made the file and that is we also filed a supplementary statement of Mr Bonner.

PN97

THE SENIOR DEPUTY PRESIDENT: Yes, well, I won't mark that either at this stage.

PN98

MR WHITE: No, but as long as it was there, your Honour.

PN99

THE SENIOR DEPUTY PRESIDENT: Yes, it is there and I can assure you that I have read it. To the extent that it is necessary, I am to hear you in terms of an expansion of that outline of argument, but I don't expect you will need to transgress all of that material yet again.

PN100

MR WHITE: Certainly not, your Honour. I had no intention of doing so.

PN101

THE SENIOR DEPUTY PRESIDENT: And to the extent that it is appropriate I wonder whether the parties have talked about the need to cross-examine any of the witnesses proposed to be called. If there was no dispute over, for instance, the evidence of Mr Bonner and no requirement that Mr Bonner be cross-examined, then I would propose to simply accept his statement as such but obviously if there is a need to call him we will do so.

PN102

MR WHITE: I have discussed that with Mr Nolan, I haven't discussed it with Mr Austin. I think there is one matter of clarification which Mr Nolan required in respect of Mr Bonner's statement and I can give that on the record now and as I apprehend it subject to that clarification Mr Nolan wouldn't require Mr Bonner for cross-examination.

PN103

THE SENIOR DEPUTY PRESIDENT: Will not require?

PN104

MR WHITE: Will not.

PN105

MR NOLAN: Can I say that is the case, your Honour. The only caveat I have expressed is that I understood just before you came on the bench that Mr White said that they nevertheless wanted Mr Bonner to give some supplementary oral evidence. It may well be that we will need to cross-examine; we don't know what that is. It might be limited to the scope, I expect it will be, so subject to that reservation, certainly on the material already filed, we don't propose to cross-examine Mr Bonner and, while I am on my feet, I can indicate that Mr White indicated that they too don't wish to cross-examine Mr Butler.

PN106

THE SENIOR DEPUTY PRESIDENT: I see, thank you.

PN107

MR WHITE: That is subject to another point of clarification in respect of Mr Butler's statement. The point of clarification required by Mr Nolan in respect of Mr Bonner's statement was in respect of the rule change to the ANFs rules insofar as they affected eligibility in its New South Wales branch, and it should be made clear that it is the case that the rule change which went to assistants in nursing was a direct lift from the state registered union rule into the federally registered organisation's rules. If that wasn't clear then it should be clarified.

PN108

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. It might be best if we clarified Mr Austin's position. Mr Austin, what is your position in relation to evidence that might be given by Mr Bonner. Is it the same as that expressed by Mr Nolan?

PN109

MR AUSTIN: It is, sir.

PN110

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr White, I am now in your hands.

PN111

MR WHITE: Can we just stick with the statements. We don't require for cross-examination Ms van Gorp, the Business SA deponent. We object to the statement of Mr Davis and we would ask your Honour to hear us on that objection. If your Honour is against us on the objection and the statement is admitted, well, particular parts of it are admitted, then we will be requiring Mr Davis for cross-examination.

PN112

In respect of the part of the statement - Mr Butler's statement which we require clarification of that involves paragraphs 24 and the following dealing with the Nurses Board enquiry. As we apprehended, your Honour, part of the relevance may well have been, and this is made clear at paragraph 25, that the work performed by personal care attendants is not nursing work and that nursing work is that defined or catered for or governed by the Nurses Act.

PN113

Your Honour, that matter has been decided already by Williams SDP and it is not something which was the subject of appeal. As I understand it, it is not put forward or relied on by the LHMU in the way we apprehended it. On that clarification we don't object. If your Honour is assisted we can - just a quick reference to where his Honour, Williams SDP dealt with it is in paragraph 33 of his decision, but I don't need to take you to that now expressly on the basis of the clarification which I have just outlined. As I understand it, it is the LHMU position.

PN114

MR NOLAN: I can confirm that we are not in the position, frankly, to canvass what his Honour, Williams SDP decided in his decision and this doesn't propose to do that all it simply does is bring up to date a position that was left as a loose end when the proceedings before Williams SDP concluded.

PN115

THE SENIOR DEPUTY PRESIDENT: Shall I take it then, Mr White, with that caveat you say there would be no need for Mr Butler to give evidence.

PN116

MR WHITE: That is so, your Honour.

PN117

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Nolan, given that Mr White has raised or outlined his position with respect to the evidence proposed to be given by Ms van Gorp and Mr Davis. Do you require either of those persons to give evidence?

PN118

MR NOLAN: No, your Honour, I don't require them to give evidence but we would fully anticipate we would be supporting what Mr Austin says about the reception of Mr Davis's evidence but apart from that I didn't propose to cross-examine Mr Davis.

PN119

THE SENIOR DEPUTY PRESIDENT: Leave Mr Davis in a slightly different category to Ms van Gorp.

PN120

MR NOLAN: That's right.

PN121

THE SENIOR DEPUTY PRESIDENT: All right. Mr Austin, if there is an opportunity it might be appropriate then for you to indicate to Ms van Gorp that she is not going to be required to give evidence today.

PN122

MR AUSTIN: Yes, I will just deal with those instructions, sir.

EXHIBIT #BSA37 STATEMENT OF MS VAN GORP
EXHIBIT #LHMU30 STATEMENT OF MR BUTLER

PN123

THE SENIOR DEPUTY PRESIDENT: I won't mark Mr Bonner's statement as yet, because I understand that you will be calling him, is that the case?

PN124

MR WHITE: Yes, your Honour. Can I understand that we need leave to call him?

PN125

THE SENIOR DEPUTY PRESIDENT: Yes.

PN126

MR WHITE: Can I explain to you briefly why it is why we want to call him, and what it is the scope of his evidence will be? Your Honour, you will have seen some reference in the submissions of the ANF in reply to the proposition that we put that the adverse inference which is sought to be drawn against the ANF that is that because it has had in the past no certified agreements or award coverage in respect of personal care attendants in South Australia it is unlikely to do so - able to do so in the future. And we are saying that express adverse inference was not put to any of the ANF witnesses.

PN127

As part of the background to the case and the historical coverage of PCAs and industrial regulation of their work and also in part to explain the ANFs progression and the move to cover now the totality of the PCA class of employee there is an abundance of evidence about the change in duties, they have now moved on to doing what was historically nursing duties performed by RNs and ENs and the like, but the specific adverse inference which is now sought to be drawn is not put.

PN128

And so we would seek leave, your Honour, to call Mr Bonner to give evidence as to why it is that there have been no awards or agreements or industrial coverage for PCAs in the past and that will explain to the Commission the historical perspective to enable the Commission or to assist the Commission to address the question of this adverse inference that is the only likelihood or the chance of it achieving industrial coverage in the future.

PN129

Perhaps we are being ultra cautious, your Honour, because as we apprehend the Full Bench decision it found that there was ample evidence to show that the ANF could in the future obtain award or agreement coverage and there was evidence to substantiate that, but this specific matter is now being put and the rule of Browne v Dunn requires as a matter of fairness that it be put and we now have an opportunity to explain. So, your Honour, the evidence is in short compass addressed to that adverse inference.

PN130

THE SENIOR DEPUTY PRESIDENT: I understand the issue you are raising Mr White. Why wasn't that matter addressed in the additional submissions at the outset?

PN131

MR WHITE: Because, your Honour, it is not new material as such and we were limited by your directions to new material. None of this is new material. As we understood the directions, what we were able to put on in evidence was new evidence and we understood that to mean evidence which is really in effect arisen since the conclusion of the proceedings. Your Honour's directions I think expressly referred to new or fresh evidence.

PN132

THE SENIOR DEPUTY PRESIDENT: Lest there be any doubt in that regard, I intend to allow all of the material put to me by the ANF as additional material, all of the material put to me by the LHMU as additional material and all of the material put to me by Business SA with the exception of Mr Davis's statement.

PN133

MR WHITE: That was to be the basis of our objection.

PN134

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that and I will reserve a conclusion on that matter. Obviously the weight that I attach to any of that material will vary, but I don't want the parties to be operating under the misapprehension that I am going to deny them the opportunity to allow consideration of the material they have obviously prepared over the last few months.

PN135

MR WHITE: Yes. So your Honour asked why it wasn't in our material and that is why we limited ourselves to what we thought we were permitted to do and now seek leave to call the evidence which is not fresh.

PN136

THE SENIOR DEPUTY PRESIDENT: All right, yes. Mr Nolan, do you have anything to say to me on that issue, on that issue alone?

PN137

MR NOLAN: We are really in your Honour's hands on that matter.

PN138

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Austin?

PN139

MR AUSTIN: Yes, I have no objection to it.

PN140

THE SENIOR DEPUTY PRESIDENT: All right. I will allow that opportunity.

PN141

MR WHITE: In that case then can I call Mr Bonner?

PN142

THE SENIOR DEPUTY PRESIDENT: Yes.

<ROBERT BONNER, SWORN [10.25AM]
<EXAMINATION-IN-CHIEF BY MR WHITE

PN143

MR WHITE: Can you state your name and address, please, Mr Bonner?---Yes. Robert Bonner (address supplied).

PN144

In this matter have you prepared a witness statement of some 39 paragraphs?
---Yes, I have.

PN145

Have you got a copy of that with you?---I have.

PN146

Have you read it recently?---Yes.

PN147

Is it true and correct?---It is.

EXHIBIT #ANF108 STATEMENT OF ROBERT BONNER

PN148

MR WHITE: Have you also prepared a supplementary witness statement of some 11 paragraphs?---Yes, that is correct.

PN149

Have you read that recently?---Yes, I have.

PN150

Is that true and correct?---It is.

EXHIBIT #ANF109 SUPPLEMENTARY STATEMENT OF ROBERT BONNER

PN151

MR WHITE: You are aware, Mr Bonner, there is some criticism now directed to the ANF to the effect that the fact that is has had in the past no industrial regulation governing PCAs in South Australia is a clear guide to its future potential to represent PCAs?---Yes, I am aware of that.

PN152

In the past in South Australia has the ANF tried to achieve award or agreement coverage?---No, not until very recently.

PN153

Why is that so?---Until very recently, of course, the ANF was not admitting as members any of those people in this class and was provoked to do so, as I think I have given evidence previously in this matter, by the change in work of PCAs to assume more and more of the duties that were hitherto the functions of registered and enrolled nurses in the sector so there was no immediate imperative ..... of our membership coverage for us to do so. More recently we have not done so because of the lack of resolution of this particular matter because any industrial instrument we were able to achieve would only effect those PCAs who had completed a qualification that had been approved for the purposes of their eligibility and that would have meant that employer resistance was likely to be extremely significant given that it would result in at least two industrial instruments effecting the same class of employees in that particular aged care facility, one for those people who are eligible by virtue of their completion of a certificate III or other qualification for our rules, and another industrial instrument for those people who we are seeking to cover as a result of this application who have not completed a qualification that gives them entry to the ANF.

**** ROBERT BONNER XN MR WHITE
PN154

In the event that the ANF is successful in this application, what is its intention in respect of the industrial coverage of PCAs?---Our intention remains as I gave evidence last year which is to obtain federal award coverage for this class of member and, secondly, to vigorously pursue enterprise bargaining agreements on behalf of these members in the same way as we do for registered and enrolled nurses.

PN155

To what extent is this application now before the Commission part of the ANFs approach to achieving industrial regulation for PCAs?---Well, as I indicated earlier, one of the particular problems that we have at the moment is because of the 70 or 80 per cent of people who currently hold a certificate that has been approved for ANF membership is that we cannot pursue an agreement on behalf of the whole group of employees we can only pursue the agreement for those people who have got a qualification, so resolution of this matter is fundamental to us being able to pursue awards and agreements covering all PCAs in aged care facilities.

PN156

Thank you, I think that is the extent of the evidence-in-chief.

PN157

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Nolan?

<CROSS-EXAMINATION BY MR NOLAN [10.30AM]

PN158

MR NOLAN: Mr Bonner, I think you would agree with me will you not that it was apparent that the PCAs in South Australia were doing the range of duties that became the subject of the recent work value examination in the state Commission for at least several years?---There had been a change in work that occurred over a number of years, that is correct.

PN159

And that was it would be fair to say crystallised in the work value exercise what is it now 18 months ago, 2 years ago of the state award?---Yes, shortly after we made the application in this matter.

PN160

And so at least it was evident to you that PCAs were conducting or performing these duties at least since or before that time?---As I said this rule change application was made before that case was underway so it was apparent obviously.

PN161

So far as you were concerned then the rule change application was your acknowledgement or recognition of that fact that it had become a reality in the workplace for some time prior to the rule change application?---It was certainly part of the consideration around making the rule change application was that the work was now fundamentally work that had previously been the province of registered and enrolled nurses.

**** ROBERT BONNER XXN MR NOLAN
PN162

And you have always said that you were in a position notwithstanding the rules change application to cover 70 per cent or so of the PCAs employed?---That is correct.

PN163

And one expedient open to you could have been, can I suggest to you, the achievement of a certified agreement under the Workplace Relations Act that covered qualified PCAs as well as registered nurses and enrolled nurses but also extended to the unqualified people that was available to you was it not?---We could only pursue a certified agreement for our members who would be those people with a qualification.

PN164

So that is your position so far as that is concerned, you don't accept that you could have covered with an agreement a minority of employees who may not have been covered by you?---That is not my understanding.

PN165

Do you agree though that you could have achieved a comprehensive certified agreement covering PCAs and other classes of workers in conjunction with the LHMU had you been minded to do so?---If both unions had been minded to do so, yes, that would correct.

PN166

And that wasn't something that hasn't occurred historically?---No.

PN167

Perhaps the ANF hadn't put that to the LHMU as a proposition?---The LHMU had been saying consistently that they weren't prepared to enterprise bargain in the aged care sector at all.

PN168

The ANF had not tried to promote a joint exercise with the LHMU in that regard?
---No.

PN169

And so really the position you were left with is the one that you have really described in your witness statement and that is that you put everything on hold effectively until this application was determined?---Well, I mean, we have adopted an approach that says that resolution of this matter was critical to pursuit of federal award and agreement coverage effectively for all PCAs in the industry.

PN170

And it would be fair to say though wouldn't it that that was to some extent making a virtue of necessity because you well knew that the employers in the industry was prepared to extend federally certified enterprise certified agreements to PCAs?
---We have not by and large thought to negotiate certified agreements with those employers to test that proposition.

**** ROBERT BONNER XXN MR NOLAN
PN171

But you knew, didn't you, that the attitude of the employers is the one that has been articulated here, namely, that they wouldn't agree to the extension of agreements to cover PCAs?---I am aware that a number of employers have expressed that view.

PN172

There is no further cross-examination.

PN173

THE SENIOR DEPUTY PRESIDENT: Mr Austin?

<CROSS-EXAMINATION BY MR AUSTIN [10.34AM]

PN174

MR AUSTIN: Yes, thank you, your Honour.

PN175

Mr Bonner, are you aware of employers or sites where all the PCAs who are employed there are eligible for ANF membership by virtue of their qualifications?---No.

PN176

You are saying that there aren't any such sites or you are not aware of any?---I am not aware of any.

PN177

And it is not a case that you have been around endeavouring to ascertain that whether all PCAs employed on particular sites have the qualifications such that although you have 70 to 80 per cent eligibility across that employment classification, you may on a particular site or in respect of a particular employer have 100 per cent eligibility if all PCAs are qualified?---I am saying to you I am not aware of any aged care facility in the state which has 100 per cent trained staff, a certificate III or equivalent level, and that is despite regular, frequent contact with the industry.

PN178

Thank you, your Honour.

PN179

THE SENIOR DEPUTY PRESIDENT: Mr White?

<RE-EXAMINATION BY MR WHITE [10.36AM]

PN180

MR WHITE: Mr Bonner, for how long in your view or estimation has the ANF had as eligible for membership 70 to 80 per cent of PCAs in South Australia?
---Since 2001 when we made the decision to accept those people into membership. The technical capacity to enrol has been the rule for some time longer then that, but the level of training in the workforce was not what it is now before even 1998 or 1997.

**** ROBERT BONNER RXN MR WHITE
PN181

When has the level of training in the workforce got to the 70 to 80 per cent
stage?---It was a tremendous explosion of training around the time of the Aged Care Act coming into being in the late 1990s coupled with the implementation of the national training agenda and the creation of consistent certificate III qualifications in aged care work in about 1998.

PN182

And it went up from there?---Absolutely. That is when it really launched off and the few yeas that followed that period were critical to the level of training that is now evidenced in the industry and also affected the changing role of those people.

PN183

Thank you, no further questions, your Honour.

PN184

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Bonner, thank you, for your evidence, you are released.

<THE WITNESS WITHDREW [10.37AM]

PN185

MR WHITE: That leaves, I think, your Honour, I think, the objections we have to Mr Davis's statement to be dealt with as part of the final evidentiary part of the case.

PN186

THE SENIOR DEPUTY PRESIDENT: Perhaps before you make that objection, Mr White, just clarify with Mr Nolan and more particularly Mr Austin the basis upon which that evidence is proposed to be admitted. Mr Austin, to what extent do you say to me that the evidence of Mr Davis is simply to the effect that Mr Davis has explained the circumstances which resulted in a position being adopted by the Community Employers Association, the effect that they would not actively intervene in the matter but that I should not draw any inferences from that position such that they supported the ANF application, is that the sum total of the import of the evidence proposed to be adduced from Mr Davis?

PN187

MR AUSTIN: Effectively, it is, your Honour, because the employer position - the employers were concerned about there appeared to be an adverse inference drawn by the Full Bench by the absence or a lack of continuation by the CEA of its formal objection to the matter, so it is a case as Mr Davis has said in his statement that if Mr Livesey's letter to the Commission had created the impression that they weren't objecting to the application that that wasn't what was intended to portray.

PN188

THE SENIOR DEPUTY PRESIDENT: You are not looking that I draw any conclusions from Mr Davis's statement about the extent of the opposition that the Community Employers Association might have to the ANF application, are you?

PN189

MR AUSTIN: Well, I mean, no greater opposition then the employers represented by Business SA has and there is a degree of common membership in relation to certain organisations.

PN190

THE SENIOR DEPUTY PRESIDENT: Business SA has been here from the outset.

PN191

MR AUSTIN: Correct, sir, yes.

PN192

THE SENIOR DEPUTY PRESIDENT: And you have been an active intervener?

PN193

MR AUSTIN: Yes, sir.

PN194

THE SENIOR DEPUTY PRESIDENT: Yes. You are not looking for me to put Mr Davis's Community Employers Association in that category, are you?

PN195

MR AUSTIN: No, sir, no, but just so there is no - because there appeared to be an adverse inference drawn from their absence from the proceedings but just to say, well, that adverse inference should not now be drawn and it shouldn't be seen that there is a lack of solidarity on the part of employers generally to this, and think that Mr Bonner in his evidence - - -

PN196

THE SENIOR DEPUTY PRESIDENT: No one is standing immediately behind you, Mr Austin.

PN197

MR AUSTIN: Thank you, sir. And I think Mr Bonner in his evidence just then acknowledge the level of employer resistance that there has been to any attempts to a federal award coverage so really that was the purpose of Mr Davis's evidence.

PN198

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Nolan, do you have any view in relation to Mr Davis's evidence?

PN199

MR NOLAN: No only that your Honour on balance we say would be inclined to accept it on the basis that it has been offered by Mr Austin.

PN200

THE SENIOR DEPUTY PRESIDENT: Mr White, if I accept the evidence of Mr Davis on the basis that it has been offered, do you still have an objection?

PN201

MR WHITE: Yes, your Honour.

PN202

THE SENIOR DEPUTY PRESIDENT: I see, all right, thank you.

PN203

MR WHITE: Because we now have an association which represents 60 per cent of employers in the industry that says we object on the grounds of some evidence, unstated, that the same as Business SA. We haven't had a chance to cross-examine Community Employers or Mr Davis or any other representative of the Community Employers about that position. It is a position, first of all completing it, it is not fresh evidence at all, but it is completely unsupported by evidence other than the reference to the me too party, paragraph 8. We agree with Business SA.

PN204

So in the substantive hearing we had the opportunity to cross-examine Mr Evans who was then with Business SA and a number of officer holders of Business SA who were also executives in the aged care sector. But here there is a stated objection, a broad statement representing 60 per cent of the employers incorporating evidence given by another with no chance of cross-examination. So what solidarity there is, your Honour - - -

PN205

THE SENIOR DEPUTY PRESIDENT: So should I presume then, Mr White, that if paragraph 8 was not there, there would be no difficulty with accepting the statement of Mr Davis?

PN206

MR WHITE: Well, there is still a problem with paragraph 4, your Honour, a bold assertion of fact not supported by any evidence. If the statement is only to the extent that failure to file an objection did not equate to acceptance then, your Honour, despite the fact that that is not new evidence at least on an evidential basis in terms of objection that problem is somewhat dissipated, but I don't know if that is how it is limited, we don't know how that is of assistance to the Commission in the task that you now face.

PN207

THE SENIOR DEPUTY PRESIDENT: It means if I am short of reading matter I have got something else to read.

PN208

MR WHITE: Your Honour, we can always give you more.

PN209

THE SENIOR DEPUTY PRESIDENT: I have noticed, thank you.

PN210

MR WHITE: But if the effect of the statement is limited to lack of objection doesn't mean concurrence then the second point of our objection dissipates. The first point that is it is not new evidence is still in force, but if it is admitted on that basis we don't understand how it assists your Honour.

PN211

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Austin, do you want to say anything to me in reply?

PN212

MR AUSTIN: Yes, sir, well, I say it is evidence that is necessary from the point of view that it wasn't raised in the original hearing by my learned friend, it wasn't put to Mr Evans, well, you know, there isn't solidarity of employers, I mean, the lack of involvement of the Community Employers Association wasn't raised directly in the hearing, but rather it seems to have come up in the course of the Full Bench reviewing the entirety of the matter.

PN213

THE SENIOR DEPUTY PRESIDENT: Yes, but if you see if I follow Mr White's argument correctly to the extent that I could make two things from Mr Davis's statement. The first is that I could reach a conclusion that if there was any doubt I should be clear that I should not assume that the silence on the part of the Community Employers Association meant that that association was supporting the ANF position.

PN214

The second thing that I could reach a conclusion about and the key concern that I understand Mr White is raising with me is that I could reach a conclusion that paragraphs 4 and 8 of Mr Davis's statement articulate a clear position of the Community Employers Association about which there is no need to ascertain any further facts or information, and Mr White is pointing out that those contentions are in dispute, and he hasn't had the opportunity to establish the voracity of those particular statements.

PN215

That appears to have some basis on the principle that the Community Employers Association hasn't been in these proceedings to date.

PN216

MR AUSTIN: Yes. I understand, sir, could I just step away from the bar table to get some instructions on this?

PN217

THE SENIOR DEPUTY PRESIDENT: Certainly.

PN218

MR AUSTIN: Yes, thank you for that opportunity to clarify my instructions, sir. If the statement goes in we would push for the inclusion of paragraph 4 and paragraph 8.

PN219

THE SENIOR DEPUTY PRESIDENT: Yes.

PN220

MR AUSTIN: Which would mean it is on the basis that your Honour indicated that it is to indicate that their lack of presence doesn't amount to assent or support for the ANF application.

PN221

MR WHITE: It doesn't amount to - there absence doesn't amount to support a new application.

PN222

THE SENIOR DEPUTY PRESIDENT: Sorry, Mr White and Mr Austin, I can't quite follow what you are just saying there.

PN223

MR AUSTIN: What I said, sir, was that seeing the objection was to paragraph 4 and paragraph 8 of Mr Davis's statement, and I can understand that particularly in relation to, you know, to eight there would be considerable other evidence to be called to be tested on that, that we would have the statement go in without regard being had to paragraph 4 and paragraph 8 to save the need to call Mr Davis, and that would be on the basis that as your Honour said that it just covers off any adverse inference being drawn.

PN224

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. That is what I understood you to be saying, I wasn't quite clear on your statement. Thank you. Mr Nolan, do you want to say anything to me about this particular issue?

PN225

MR NOLAN: I have nothing to add.

PN226

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr White, does the position put by Mr Austin remove the concern that you had?

PN227

MR WHITE: Ninety nine per cent of the concern, your Honour.

PN228

THE SENIOR DEPUTY PRESIDENT: Where is the last per cent?

PN229

MR WHITE: The last per cent is the last sentence at paragraph 10. I think the fact that they didn't put in objection I think is evidence from which a Full Bench could validly draw the conclusion that it decided not to object but, your Honour, you have heard what I have said about the statement in general, not fresh evidence and the like. If it is however limited to, sorry, if the use is limited to putting a proposition that failure to object does not equate to concurrence then, as I have said, the force of the second of our submissions dissipates.

PN230

THE SENIOR DEPUTY PRESIDENT: Yes. I will give you your 99 per cent Mr White, but not the last per cent.

EXHIBIT #BSA38 STATEMENT OF MR DAVIS

PN231

MR WHITE: If your Honour, pleases.

PN232

THE SENIOR DEPUTY PRESIDENT: Work on the basis that then eliminates the need to call Mr Davis. Is there anything else you want to put to me, Mr White?

PN233

MR WHITE: Not by way of evidence, your Honour.

PN234

THE SENIOR DEPUTY PRESIDENT: Yes. Is there anything you want to put to me in order to expand on the submissions that have been put?

PN235

MR WHITE: Yes, your Honour, but I don't intend to be lengthy. To some extent, your Honour, the submissions which have been filed indicate several distinct processes. The first submissions filed by the ANF which are now exhibit ANF106 in effect did two things. The first was to make as clear as we could what it was the Commission was now required to do and at the same time make clear as far as our understanding was what the Commission was not required to do.

PN236

In effect there were large parts of the ANF case which were accepted by Williams SDP which were not the subject of appeal and those parts have been identified in the submissions, your Honour, and I won't go into them individually.

PN237

Secondly, the Full Bench in the appeal made a number of observations and finding and those matters are not now open for discussion or further viewing or further argument. And although to the extent I have set out in tabular form what we apprehend to the findings of the Full Bench. So the first point we wanted to make, your Honour, in the submissions was that the proceedings now before the Commission are not at large and the way we have approached it, your Honour, is on that basis.

PN238

THE SENIOR DEPUTY PRESIDENT: The only question I have in that regard, Mr White, goes to paragraph 43 of the appeal decision which is addressed on page 7 of your submissions where, if my memory serves me correctly, I don't recall - - -

PN239

MR WHITE: Sorry, your Honour, I will just separate out the documents. Sorry, page?

PN240

THE SENIOR DEPUTY PRESIDENT: Page 7 of ANF107.

PN241

MR WHITE: Yes, and what was the reference?

PN242

THE SENIOR DEPUTY PRESIDENT: Sorry, 106, and the reference is to paragraph 43 of the appeal decision. In particular it goes to the question of the South Australian - - -

PN243

MR WHITE: I'm sorry, your Honour, what paragraph?

PN244

THE SENIOR DEPUTY PRESIDENT: 43.

PN245

MR WHITE: 43?

PN246

THE SENIOR DEPUTY PRESIDENT: I'm sorry; I have got the wrong paragraph there.

PN247

MR WHITE: I think you have, your Honour.

PN248

THE SENIOR DEPUTY PRESIDENT: The reference goes to the, sorry, 43 of Williams SDP's decision to the demarcation order made in the South Australian system and, if my memory serves me correctly, the Full Bench whilst it addressed that demarcation order briefly didn't find it necessary to reach any definitive conclusion in terms of the relevance of that demarcation order. I don't understand you to be saying anything different in that regard, but I thought I should just check that.

PN249

MR WHITE: It didn't, from memory, make any findings different, but I think there was some - I think from memory we did put to the Full Bench that the demarcation order, I think from memory, had been incorrectly described by Williams SDP insofar I think he said it was binding on the Australian Nursing Federation, in fact it is not. It is binding on ANFSA only. But as the Full Bench determined that it wasn't necessary to go to that - - -

PN250

THE SENIOR DEPUTY PRESIDENT: It didn't feature as a major issue in the appeal to conclusion.

PN251

MR WHITE: No, and from memory, our point in relation to that was that it didn't touch the ANF.

PN252

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN253

MR WHITE: The second thing in large part which is new in the submissions of the ANF, ANF106, was the proposition we put which is now in issue between us, and the issue between us is to the effect of the Full Bench decision and of the decision of Williams SDP and the absence of appeal from that in relation to the capacity or ability of the LHMU to represent in the federal system.

PN254

In our submissions in paragraph 13 we set out assertion that Williams SDP found to the effect we say that there was no appeal from that finding and that that has now a certain number of consequences and the prime consequence is that when your Honour comes to drawing the comparison between the two organisations there is already a finding that the LHMU neither has the capacity nor the ability to represent the federal system. My learned friend in his submissions asserts that there was no such finding by Williams SDP and to the extent that there was an observation to that effect it was in the context purely and only of the section 111AAA proceeding and my learned friend's submissions to that effect are contained in paragraphs 1.4, 1.7.

PN255

In reply, your Honour, we deal with that in our submissions in reply, paragraphs 2 to 5. I won't take you to those now, your Honour, I am just flagging that the submissions did a number of things, the first and the second. But in addition to what we have submitted to that effect in each of our submissions, that is, the first and the ones in reply, in relation to the question of whether or not this was a finding which is relevant now to your discretion or your decision, can I make further reference to the Full Bench decision in paragraph 31.

PN256

Your Honour, your Honour will recall that the point of issue between us is whether or not it is a finding or a passing observation. The Full Bench says:

PN257

It can be seen that the Senior Deputy President found that neither organisation could demonstrate an ability to represent personal care attendants under the Workplace Relations Act and that therefore the LHMUs proven record of representation at State level was decisive. This conclusion cannot stand since we have already decided that the findings that the ANF would not be capable of obtaining federal award or agreement coverage were wrong.

PN258

Your Honour, the ANF was successful in its appeal on that issue but there was no appeal from Williams SDP and it has been picked up and become part of the Full Bench decision and so, your Honour, we say that to a very large extent if it is not determinative it is certainly hugely persuasive and influential on you in arriving at your decision because as we apprehend it the LHMU position in relation to participation in the federal system has not changed. There is no evidence to suggest that there has been a change. I should say, your Honour, the application still falls to be determined under the legislation as it then was.

PN259

So, your Honour, the second part of the submission we put go to the effect of the unappealed findings of Williams SDP finding that we apprehend the Full Bench confirmed and relied on and the effect of it we say, your Honour, is that there is now before the Commission a contest between two organisations. In respect of one there is a finding that we can, the ANF, can achieve award and agreement regulations. The other, the LHMU, has chosen not to participate in the federal system and there have been findings to that effect in both Williams SDP and the Full Bench decision.

PN260

They are the two primary matters which are the subject of the submission. The third matter obviously, your Honour, if we are wrong in relation to that and it goes to the substantive matters which you need to consider in determining the comparative tests. The first point we make in relation to that is this. It is now abundantly clear by both reasons of the Senior Deputy President and the Full Bench that the relevant class of person perform nursing work or provide nursing care or nursing services and, in our submission, that is highly relevant when one comes to consider the comparison.

PN261

In our submissions before Williams SDP your Honour will recall we had ..... of interest and working together and the working teams, the delivery of care all as matters relevant to the convenience of belonging and reference is made to those in paragraph 10 of our submission, your Honour, and I don't intend unless your Honour is assisted to go to each of those separate headings and how they were dealt with in our earlier submissions before Williams SDP.

PN262

That is essentially the first part of our submission. The second part in large part is directed to what we apprehend to be the main thrust of the LHMU submission and picked by Business SA, and in this part of the case in addition to the matters which reference has been made. Can I just stop here, your Honour? I deliberately haven't gone to our written submissions before Williams SDP and I have not done so, your Honour, on the basis that you don't require it or don't need it or wouldn't be assisted by it on the basis that you have read them.

PN263

Your Honour, before I move away from the substantive convenience and effectively represent arguments if your Honour would be assisted by me going through the submissions we put before Williams SDP I am happy to do so.

PN264

THE SENIOR DEPUTY PRESIDENT: No, I don't require that, Mr White.

PN265

MR WHITE: So the significant additional part in this part of the proceedings then is the reliance by the LHMU and Business SA on the lack of exercise of what is said to be the ANFs putative coverage of personal care attendants. That seems to be the focus and main substance of their case because in effect nearly all of their case before Williams SDP was predicated on the existence of the HSE award in South Australia and the limitations imposed by section 111AAA and that has now been ruled against the LHMU. It now then has moved its argument, changed its argument if you like to attacking the ANF on the lack of exercise of its putative coverage.

PN266

Part of the evidence that you have heard today from Mr Bonner is that of the staged approach to obtaining or pursuing industrial coverage for personal care attendants. The attack comes on this basis as we understand it, you have had coverage for 80 per cent and you haven't done anything. Well, Mr Bonner's evidence this morning is to this effect that it wasn't until 2001 that the explosion in training had got to a stage where there was that level of training within the PCA ranks and as your Honour will recall the application was filed by the ANF in April 2002.

PN267

Your Honour is then faced with this in respect of the case which is now put against us, that is, failure to exercise putative coverage. There is an explanation as to the progression and the stage process taken by the ANF in relation to the coverage of this class of employee. That in the relatively recent past that has involved the consideration of the change of duties expected of PCAs such that they now perform work which had hitherto been performed by registered nurses and enrolled nurses.

PN268

That is uncontentious, your Honour. The change in duties and the change in complexity of duties and the change of acuity of the patients or residents form the basis of the LHMU application to vary the HSE award so we don't think that is a contentious thing. Your Honour now has been provided with an explanation. The provision of an explanation is important because as we apprehend the LHMU relies in part on the observations of Moore SDP in the HEF case and your Honour will recall that his Honour posited two examples although not exclusively which might explain why there was no industrial coverage or activity in relation to a class of person. The first was where they just hadn't been covered at all and in the HEF case his Honour says in the absence of explanation one could possibly draw an inference as to that organisations capacity to do so in the future.

PN269

Your Honour has been provided with an explanation and part of the explanation involves the factual change in duties and the progression and the staged approach which has been adopted by the ANF. The other thing which is relevant in this regard, your Honour, is this. It is put as we understand it as a direct attack on our capacity to achieve the industrial coverage in the future but your Honour as we understand it that has already been decided adversely to the LHMU.

PN270

Commencing in paragraph 24 of the Full Bench decision makes a number of key findings in this regard. Your Honour will recall that one of the matters which was appealed against was Williams SDP's finding that there was no reasonable prospect for the ANF to achieve federal award or agreement coverage and that was a matter squarely before the Full Bench under hearing of the appeal.

PN271

Commencing at paragraph 24 going through to 24, 25, 26, 27, 28, 29 and 31 observations and findings of the Full Bench to the effect that there was evidence not only contrary to the position found by Williams SDP as to the ANS prospects but positively in favour and in support of their capacity and ability to achieve industrial award or certified agreement regulation.

PN272

Your Honour, I don't propose to read those paragraphs out unless you would be assisted in doing so, but I see your Honour reading something there and if they are the paragraphs then I won't read them. The short point is this, your Honour, that the case now put against the ANF is a two step case as we understand it under the first example Moore SDP. First of all if there was an absence of industrial coverage then in the absence of explanation then one might be able to draw on adverse inference as to capacity in the future.

PN273

Your Honour, that is not the position here. Rational and clear explanation in large part on factual basis not in dispute between the parties and, secondly, the point is that in any event in terms of assessing the ANFs capacity in the future the Full Bench has already found adversely to the LHMU and Business SA positions on this point. The Full Bench arrived at that decision and we submitted that it was the case before Williams SDP on the ANF record and your Honour I won't go to the award list and agreement list, but it has not been updated and in Mr Bonner's statement there is a whole range of agreements and certified agreements and award updating which has occurred.

PN274

So no only, your Honour, was the evidence before the Full Bench which it accepted, but that has been expanded now. There was some objection earlier and we apprehended there might have been some objection certainly with Business SA as to the relevance of achieving award and agreements that Mr Bonner deposed to in his statement but interestingly there is one. Now, I think it is going to ballot this week and referred to in Mr Bonner's statement about the staffing mix and the like that originated .....

PN275

So not only is there capacity for the Commission as currently constituted to rely on the Full Bench findings, not only is there capacity to rely on the evidence of actual achievement, but there is now positive evidence for the Commission about PCA regulation being achieved by the ANF. I can't I think put it that highly because I think the ballot closes the end of this week, but certainly your Honour it is well down the path.

PN276

I said I wasn't going to take you to the detail of the award and agreement coverage, but can I take you to those parts of the submissions which dealt with agreement and award coverage both in respect to the ANF and the LHMU? In submissions, I think, ANF102, can I refer you to pages 101 to 102, 103 to 104 that is in relation to the ANF capacity in relation to awards and agreements. We contrasted that with the LHMU capacity at pages 100 to 101 and 102 to 103 but, your Honour, I don't intend to take you specifically to those paragraphs or exhibits referred to there.

PN277

As we understand it and there is various arguments along the way, but as we understand the nub of the objector's arguments now is this argument that because we haven't in the past we can't in the future and I think I have covered that, your Honour, I don't intend to go too much further unless your Honour is assisted?

PN278

THE SENIOR DEPUTY PRESIDENT: No.

PN279

MR WHITE: There are a number of minor things as well, I suppose, your Honour, and I intend to go to these very quickly because in effect they have largely been dealt with, the parties have joined issue pretty effectively in the written submissions.

PN280

We make one observation about the ongoing participation by the ANF in industry forum, and in paragraph 29 of Mr Bonner's witness statement, exhibit ANF108, he deposes to the effect that they participate in a range of meetings, and sets out in paragraph 29 and 30 and in particular paragraph 30 he sets out the attendance at meetings by the ANF and also sets out the attendance at those meetings by the LHMU. Your Honour will see that despite having membership the LHMU has failed to attend on any occasions in respect of a number of those committees.

PN281

To some extent, your Honour, I don't know how much further it takes you, it is put by the LHMU as we understand it that it is by participation and representation on boards, committees and peek bodies that the LHMU seeks to improve the working conditions and development of PCAs in the aged care sector and, your Honour, I will just paraphrase the introductory words of paragraph 28 of Mr Butler's statement, exhibit LMHU30.

PN282

Your Honour, whilst they are kind words it should be noted when your Honour comes to read them and consider the effect of them the non-attendance by the LHMU described by Mr Bonner in paragraphs 29 and 30 of his statement. There is just one last thing, your Honour, and I intend to go very, very briefly to this and that is that it has been put as we understand by the LHMU that, and I will refer particularly to Mr Butler's statement, paragraphs 28, 29 and 30, that the LHMU seeks to boost the role of PCAs whilst the ANF seeks somehow to drag them down.

PN283

Your Honour, Mr Bonner, to a certain extent, replies to that in his supplementary statement and not surprisingly, your Honour, as might be expected and consistent with the Nurses' Board report various classes of training and various classes of worker deliver care in aged care facilities and it is of course consistent with the delivery of proper and appropriate care as described by the Nurses' Board that the people deliver the care within their competence and range of training capacity and ability.

PN284

But more then that it should be pointed out that far from trying to put down PCAs or somehow exclude them, the fact of the matter is that the ANF, your Honour, trains them, is now a registered training organisation and that has now been updated in Mr Bonner's statement. Courses are now actually running. Your Honour, we make the submission that the fact that delivery of care is done by persons with appropriate training to the appropriate level of delivery of care is not a put down of PCAs. The ANF by assisting and insisting on proper training is not a put down of PCAs and to the contrary the ANF now in fact provides training as part of its brief to assist and to develop PCAs in the aged care sector.

PN285

So, your Honour, they are the general themes that I wanted to take your Honour to. The last few are just minor matters. Unless your Honour really would be assisted by my - - -

PN286

THE SENIOR DEPUTY PRESIDENT: I don't have any other questions of your, thank you, Mr White. Mr Nolan?

PN287

MR NOLAN: Thank you, your Honour. It might be useful if I address my oral comments to a response to what Mr White has said to you this morning rather than me too succumbing to the temptation of reading out written submissions and can I proceed on the basis that your Honour has read our submissions.

PN288

THE SENIOR DEPUTY PRESIDENT: You can.

PN289

MR NOLAN: And read the earlier submissions and so and then moved straight to these responses. Can we say that we don't take precisely the same view that Mr White has articulated about what your Honour should be doing at this phase of he proceedings. I suppose we could all be excused for perhaps being a little unclear about what precisely ought to happen because it is a little like a new person stumbling on the set of long running soap opera and suddenly having to come to grips with what has gone on before and who the parties are and precisely where the story is going.

PN290

THE SENIOR DEPUTY PRESIDENT: You can only stumble on that many files, Mr Nolan.

PN291

MR NOLAN: That is right, you could do yourself an injury stumbling on the files in this case so we can all have a certain amount of sympathy with your predicament. But that sympathy I suppose never extends very far in the case of advocates as against tribunal members and we don't for our part, agree that in the sense that the proceedings aren't at large because it seems to us that you are in the invidious position of now having to make the decision that Williams SDP perhaps should have made had he been instructed as he was after the event and after his exit from this place by the decision of the Full Bench, and so necessarily we have all been trying to come to grips with precisely the meets and bounds of the Full Bench decision. And take our bearing from that of course but subject to that decision of course you are in exactly the same position it seems to us as he was except that for good or ill you are not hearing the evidence as it was heard before him but obliged to try and absorb that absolute mountain of material that was before him.

PN292

So it is true to say in that connection that a lot of the material that was before Williams SDP was really not in contention at the end of the day and we would submit that it is somewhat of an overstatement to suggest as it has been suggested that a large part of the ANFs case was accepted in the sense that somehow or other there was a very critical acceptance of a large amount of the ANF material whereas in truth a lot of the material was not in contention.

PN293

So it is against that background that one comes to determine the issues precisely that have emerged from the Full Bench decision and where we take matters from that point. Now, in this connection there has arisen this controversy that we would really characterise as something of a side show about the extent to which Williams SDP made findings about the LHMUs capacity to cover the class of employee for relevant purposes.

PN294

It is not the case and we would resist very strenuously any suggestion that there was a crystallised finding by Williams SDP that the LHMU did not have or could not have the relevant capacity to cover employees within the federal system and we have set out we hope in a satisfactory manner our arguments on that, but we say it is really to draw too long a bow to try to suggest that Williams SDP was making a definitive statement in that regard because as we pointed out in our written submissions what he was really doing was considering a hypothesis and o the hypothesis that we had advanced before him that didn't find favour with the Full Bench that is to say the hypothesis that section 111AAA had a role to play in the determination of these matters.

PN295

All that Williams SDP was saying in our submission was that, well, look if it is right to say that section 111AAA is a bar to the ANF succeeding in this application, well the same arguments might be levelled at the LHMU. In other words the existence of the federal award would make it difficult on the law as it stands presently. That picture shortly to be changed quite dramatically, but on the law as it stands an application for a federal award whether it was taken by an employer, whether it was taken by the LHMU or whether it was taken by the ANF would meet an insuperable objection or an almost insuperable objection in fact in the form of a section 111AAA application.

PN296

All the Williams SDP was making of that was simply the logical conclusion to be drawn from it and that was that the LHMU was right about that, well, the unions were in the same boat. Now, that observation is very much to be seen as part of the discussion of that topic in Williams SDP's decision. It is not as though he made a finding, a positive finding about the LHMUs capacity to represent employees in the federal system in that area in a way that was disaggregated from or unconnected to the - - -

PN297

THE SENIOR DEPUTY PRESIDENT: These were for the goose for the
gander - - -

PN298

MR NOLAN: Yes, that was precisely the argument. What was sauce for the goose was sauce for the gander and we really think it is to overstate the case massively and quite erroneously for the position to be put as it has been put by the ANF in that regard, and so the extent to which there was a finding by Williams SDP to that effect to the extent to which that was echoed of the Full Bench decision it really doesn't take the matter any further in our submission at all. It is really a matter for you to determine and in that connection perhaps we are somewhat fortified by the position in the alternative put to you this morning where it was said, "Well, if you don't accept that proposition at least the Full Bench's comments at paragraph 41 ought to be hugely persuasive", if I made a note correctly of Mr White's comments.

PN299

We say that that is not the case. It can't be persuaded in the sense suggested simply because it was really an observation directed to that part of the argument that was well and truly dealt with by the Full Bench, and apart from anything else really it flies in the face of common sense to say that that order stand and then be used as a club to beat us with in this part of the proceedings. It is a matter of industrial commonsense it couldn't be said that the LHMU wasn't in the position to pursue federal agreements because it is a matter of public record that the LHMU has, if not thousands, perhaps hundreds of federal agreements and the LHMU made it clear in submissions before Williams SDP that in this particular case and in this industry had a particular preference for the state award for all the reasons that it put up.

PN300

It wasn't as though the LHMU had an intractable objection to the idea of a federal award or federal agreement in principle for ever and for all time. So it is not true to suggest it has been suggested that that kind of line of argument can really bear the weight that is sought to be placed upon it.

PN301

So what we are really looking at in our submission when turning to the other aspects of the argument that we put, is that one then falls back on to the pragmatic judgment that needs to be taken to determine whether or not one organisation is against another organisation can more effectively represent the employees concerned and whether or not the employees could more conveniently belong to those and we have addressed those issues in the written submissions and I will try not to repeat what I have said there, but really concentrate on what was said this morning.

PN302

We don't take issue of course with Williams SDP's conclusions about the relevant class of employee and so on and we would be hard pressed to have done so in the light of his earlier decision, the Victorian case that you no doubt will be award of, but when it comes to pragmatic considerations such as those that you have been referred to in the main of ….. of interest and delivery of care and common interest, et cetera, yes, they are certainly factors that need to be taken into account and will be waived the balance. But, of course, we say the countervailing consideration when one comes to look at his pragmatic issues is the level of membership that has been achieved by the LHMU in the area concerned, and I this connection we would refer you to Mr Butler's statement with the latest membership figures. And the picture that is painted is really one of a steady and very substantial increase in members within the PCA ranks in the LHMUs case and invites you to compare that with Mr Bonner's evidence this morning where he gives evidence about the branch figures overall and says that they have broadly maintained their position.

PN303

He has not made any particular claims about increases within the ranks of PCAs, but rather the picture has been one, in our submission, that has been effectively conceded by the way he has framed his evidence. And that is there doesn't appear to be and it can't be concluded that there has been any corresponding increase in PCA membership in the ANFs ranks since this whole matter started, and say that is an important factor that needs to be weighed in the balance. And coming to a conclusion about these two elements of convenience of belonging, and effectively represent, because one we say must be inextricably linked at least inferentially because the measure of convenience is the increase of members those that are prepared to step forward and sign the membership card and the measure of effective representation must also be surely measured in those sorts of numbers because a best test of the effectiveness of the respective unions will be the preparedness of the employers in the industry to step forward and sign up and the evidence in this regard, in our submission, is all one way and it points to a steady and increasing and impressively increasing growth of membership within these ranks of the LHMU.

PN304

So that is one of the pragmatic considerations that you will, in our submission, take into account, and there is nothing in what we said about and what we have been criticised about saying about the putative coverage of the ANF, there is nothing in any of that that detracts from that proposition and when one considers Mr Bonner's evidence today about some of the tentative steps that have been taken with respect to encouraging PCAs into the ANF and in particular he mentions this question of raising the issue of a written contract of employment for employees.

PN305

That itself does not appear to have resulted in any increases in membership within the ranks, and it is in effect an exercise of that putative coverage, so the ANF can't have it both ways, it can say that we are fore squaring exercising this coverage because we want to wait for the outcome of this case, but at the same time sign people up and also engage in what might be described as a campaign light exercise where it simply agitates around the existence on non-existence of a contract of employment ..... and not have its efforts and energies in that regard measured in the manner in which we say it can and should be measured in order to make the assessment that you are obliged to make.

PN306

So whilst it is all very well to talk about a staged approach, that is a staged approach which is an approach in our submission of convenience because it really avoids the inevitable challenge of bringing this issue to a head and really awaiting for the Commission to make a decision before the test is really to be embarked upon, the critical tests to be explored, and so far as the explanation about the timing of this goes, another issue with respect to timing maybe at least inferentially appreciated by looking at the Victorian decision which was handed down in December 2000.

PN307

That is the equivalent decision that went to PCAs in Victoria, a decision of Williams SDP which in that case was in favour of the ANF where much the same kinds of arguments were already well and truly available and were made a good deal of in that earlier decision, so it is not all sweetness and light, it is really the case that a pragmatic decision was obviously taken by the ANF to chance its arm in Victoria, if you like, where the facts were quite different and you can understand why they would have done that before turning its intentions to South Australia hopefully, from its point of view, then having the scalp of Victoria in its belt.

PN308

We are not unduly critical of them in that regard because there is no doubt about the fact that Victoria was one that cried out for the ANF to become involved, but we say the position here is quite different and the full picture really isn't painted by trying to suggest really all that was involved here was a staged approach. It was stated in the sense that it was part of a broader campaign of questionably.

PN309

So this issue of the more effectively represent, more conveniently belong, is still a live issue. There is extensive evidence which you have been referred to about the LHMUs participation, and as we have observed in the written submissions the only critical difference in the light of the Full Bench's decision is what is made of the LHMUs activities within the state system absent is section 111AAA argument and there is no doubt about the fact.

PN310

And we have referred your Honour to that HCF decision of Moore DP where we tried to come to grips with this issue, and that is to say the position of the federal Commission in determining whether or not a rules application should be granted where the principal objector is an objector union whose industrial activities have been principally engaged within a state system, and I think there was some discussion about this in the appeal if I am not mistaken, and there was in a sense an arbutus resorted to and that is really the principle articulated in that ACF decision where in a sense the capacities of the state union were in a sense imputed to carry over to the federal sphere.

PN311

In other words the activities of the state union weren't just rendered nugatory simply because they participated within the state's sphere. Some attempt was sought to be made at the federal level by way of acknowledging and recognising what had occurred as a matter of practical reality of the state sphere to come to grips with what was then the conveniently belong test, and Moore DP as he then was endeavoured to come to grips with that dilemma in the way that we have explained in the written submission. In other words he said we have to acknowledge that activity and we acknowledge it as been activity that is indicative of what the union could do in the federal system if it was called upon to do so.

PN312

So it acknowledged and gave substantial, indeed, full weight and, indeed, on the merits if necessary priority to the industrial history that had occurred within the state system, and so there is no reason, in our submission, why that test ought to be different and why it shouldn't apply squarely to the position of the LHMU in this case. And there is perhaps only one difference and that is an important difference in our favour which we have pointed to in the written submissions and that is in the case that Moore SD was referring to there was a distinction between the state registered union, the state entity, and the relevant branch of the federal union, but there is no such distinction here as we have pointed out, and that is not in contention because of the expedient adopted in the South Australian legal system.

PN313

The branch of the federal union is able to be registered as a state union and that is precisely the position here with the LHMU although, of course, it wasn't with the ANF, and it is true to say as Mr White said earlier that the order within the state system is not binding on the federal ANF because the federal ANF and the state ANF are separate legal entities, but that was the only point of distinction or point of importance or significance that arose in the HEF decision of Moore DP. It presupposed that the state union would be able to effectively operation in tandem with the counterpart federal union, well, that is not the consideration here, and so we say for all of the reasons that Moore DP felt he was able to acknowledge and recognise the participation in the state system is relevant for the federal comparison we say those reasons apply in spades here.

PN314

And so that being the case it is not the state experience simply cannot be discounted or diminished in any way. It assumes full significance even absent for section 111AAA approach that was disfavoured by the Full Bench.

PN315

It was next said that the Full Bench had made a definitive statement that the ANF would no doubt be able to achieve federal agreements. Well, we acknowledge what the Full Bench has said but, of course, the Full Bench said no more than assert position in principle. As to the prospect of federal agreements there was nothing said. We would say in response that accepting that the ANF is capable of making federal agreements and they have made a number of federal agreements in covering registered nurses and enrolled nurses and so on, there is nonetheless the exercise to be embarked upon which asks the question, well, what is he realistic prospect of the ANF achieving agreements against the background of the state industrial activity that has been sketched out in some considerable detail.

PN316

That is a relevant question, and the judgment we say that ought to be reached is that the prospects are indeed slim prospects in the light of the already established state industrial history and it is not at all sufficient to say that - or it is no answer to that to say there is an agreement in the pipeline. Once swallowed of course doesn't make a summit. And it might be said that that really bears out the criticism that we have made of the ANF, that it has now reacted to in the way you have heard this morning because the ANF has apparently now chanced its arm and only in that exercise come up with one paltry agreement. One agreement when on its evidence it is at least capable of achieving agreements in respect of PCAs in a wide range of areas even if it accepted that they PCAs who don't have the relevant qualifications could not be covered by the agreement and that is another point of contention of course.

PN317

So one needs to make an assessment about the prospect, the likelihood if you like of the ANF being able to convincingly achieve a pattern of federal agreements in respect of PCAs in this area. And the only basis upon which you have to make any such projection or anticipate such a state of affairs, is the evidence that you have before you and, of course, that evidence is that the ANF itself is in effect staid its hand, but in some senses having it both ways. But this is not a case, for example, like the case that you will be familiar with involving the National Tertiary Education Union where the NTEU went to the Commission with a sugarbag full of expressions of interest by those employees in the universities who weren't then eligible to join the NTEU and who said they would do so if the rules the NTEU were extended to cover those additional classes of employees.

PN318

And they did so in the knowledge of the existing claims made in respect of the industry by the objecting unions but nonetheless the Bench had before it that definitive expression of choice or preferment if you like by the large majority or a very significant number of employees who were the subject of the application. So if one is to bring into this concept of competitive unionism is you like, in that case you had a positive statement by the employees concerned that they wanted to join the NTU. You haven't had that kind of evidence in this case and it would be a different position, in our submission, if the ANF were able to come along and say to you perhaps I think as they may have done in Victoria that there were large numbers of employees who were crying out saying, please, please come and cover us because we are dissatisfied with the coverage that we've got.

PN319

That is not he evidence that you have before you and, indeed, the evidence of the steady rise of numbers of LHMU members would really effectively undercut any such suggestion. So that element of what might be regarded as the competitive unionism argument that has become available since the 1996 amendments would not seem to have any real traction in this case at all.

PN320

As to those other minor points that were made by Mr White, he makes something of this issue of the range of meetings attended or not attended by one union or the other. In our submission these matters are not a great moment, but for what it is worth the particular bodies identified by Mr Bonner weren't said to be the most significant bodies of whatever level. You are really left to speculate about that evidence and it is not a matter that can be of great assistance to you and Mr Butler, his part was not cross-examined by agreement, so you are really left with not a lot on that score to assist you so far as this recent evidence is concerned.

PN321

As to the last comments about Mr Butler's evidence regarding the exchange with the training body about additional skills and qualifications for PCAs or additional duties, there is no gain saying the evidence there and that is the ANFs intrusion. This seems to be the most notable recent intrusion in to this area of proposed training was simply to try to prevent an additional skill or an additional area of expertise being conferred upon the PCAs as a part of their training. Well, that is hardly a portent for encouraging PCAs one would have thought in their employment.

PN322

Again, I don't know whether that takes the matter a lot further and at the end of the day won't be of decisive importance in assisting you. Perhaps it is something that the parties will no doubt broadcast in the field as they be advised from time to time in the near future, but the position is one at least that bears some recent testament to the ANF really protecting a more narrow view of what ought to be involved in the work of the PCAs then would unquestionably the place if the LHMUs preferred position had its way or, indeed, for that matter the employers had their way. So perhaps it is a portent of an appetite for further restrictions, a lack of flexibility at the workplace at the instigation of the ANF. I suppose it is a straw in the wind at least.

PN323

So, your Honour, we rest content with all of the written submissions and we trust you will survive the exercise of reading all of that material and most particularly take into account the recent written submissions and suggest to your Honour, that the position that we put to Williams SDP is not altered by reason of the Full Bench decision, but that the objections should be upheld that the application should be rejected or dismissed notwithstanding the Full Bench decision because there are other respectable basis upon which the same conclusion could have been reached. May it please your Honour.

PN324

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Nolan. Before I hear from you, Mr Austin, the parties should have been advised that unfortunately I am going to need to interrupt the proceedings today. Twelve o'clock was the only time I could manage to obtain a video link to Perth for a different matter. It occurs to me that it might be appropriate to hear from you after that extended luncheon break, Mr Austin.

PN325

MR AUSTIN: If you Honour pleases, I wouldn't anticipate being very long at all.

PN326

THE SENIOR DEPUTY PRESIDENT: All right. At this stage we will need to adjourn until 2 pm today. I will adjourn the matter accordingly.

<LUNCHEON ADJOURNMENT [11.53AM]
<RESUMED [2.06PM]

PN327

THE SENIOR DEPUTY PRESIDENT: Mr Austin?

PN328

MR AUSTIN: Yes, thank you, sir. Sir, the objective Business SA relies on the written submissions that have been filed at this hearing and also at the earlier hearing of the matter. We also support the submission that was made by the LHMU and I support the submissions that were made by Mr Nolan this morning and rather then just slavishly repeat all those matters, sir, I just wanted to underline a couple of factors in Mr Nolan's submissions.

PN329

May I certainly support and emphasise what Mr Nolan described as some of the pragmatic considerations that the ….. belong and the ability to effectively represent are inextricably linked and he mentions that the employees in the industry are being prepared to step forward and sign up to the LHMU as evidenced by an increase in the LHMU membership as opposed to there being no demonstrable increase in membership particularly in relation to the PCA, the relevant class of persons in the ANF evidence.

PN330

But, sir, it is not just a matter of the employees being prepared to step forward and sign up to the LHMU. It is a matter that the employer position needs to be considered as well and I think what was important about the Victorian case was the lack of employer representation. But here is the case the employers are not prepared to step forward and sign up to the ANF whether it is by a federal award or a certified agreement and that position remains the case as evidenced by Ms van Gorp's statement and said nothing adverse can be put in relation to the absence of the CEA objection.

PN331

The other thing I would also like to underline, sir, is that we don't consider the explanation provided by the ANF as to why it hasn't pursued agreements for the 80 per cent of persons it is eligible to cover is satisfactory. It has been the case that clearly the employees haven't been prepared to vote with their feet. Even if, as the ANF, submits that it now has a training arm and it has given the training or makes available the training to PCAs which would qualify them for eligibility to membership of the ANF, it is a case of, well, if employees have taken that training on they certainly haven't voted with their feet in the point of view of becoming members of the ANF despite having that training.

PN332

So to say, well, look, the reason we haven't gone ahead and tried to seek coverage for the 80 per cent we have eligibility for is well, we are waiting on the outcome of this application. That just doesn't follow. If they had an opportunity or a vehicle which they could endeavour to increase their membership and so then reduce the gap, increase the 80 per cent that they would have eligibility for.

PN333

So this, sir, we say shows a lack of interest in ANF membership on the part of that category of employees versus the LHMUs increase in membership and as Mr Nolan also said, look, unlike the NTEU case there was no procession of employees waiting to join the union and so in fact seeking that the NTEU union rules be expanded. In this case if you will be seeing an NTEU type of situation one would expect that, well, having provided a training facility that would have seen persons taking up that training availability, that training opportunity and then using that to join the ANF, but certainly on the evidence that has been provided that is missing.

PN334

And, sir, it is a matter then of taking into account the employer objection is based on wanting to maintain the HSE award for its employees. The employers have put considerable energies, resources over the years maintaining and updating that award and maintain that that is the appropriate basis to deal with the employees of the class affected. So, your Honour, that is what we wish to say rather than repeat the submissions that we made by Mr Nolan.

PN335

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Austin. Mr White?

PN336

MR WHITE: Thank you, your Honour, there is only a number of matters raised in Mr Nolan's submissions which I will go to in the order in which he addressed your Honour. The first matter on which he addressed was the dispute between the parties as to whether or not there was a finding by Williams SDP in relation to the capacity or ability of the LHMU to represent in the federal system, and I touched on this in my earlier submissions, the proposition put by the LHMU is that it was an observation in passing in effect in the context of a section 111AAA finding.

PN337

One reason which is a little bit more then that can be seen from the actual words of paragraph 52 because in the first sentence of paragraph 52 of Williams SDP decision he there talks of what is good for the goose is good for the gander and that is in relation to the operation of section 111AAA, but in addition to the section 111AAA point there is the choice that the LHMU has made and that choice remains. The LHMU in South Australia will not seek federal agreements or federal awards for the relevant class of employee.

PN338

The second matter my learned friend went to was the question of what he called the pragmatic judgment that the Commission must make. It is said that the countervailing balance against matters which we submitted in favour of you granting the application were the increase of level of membership achieved by the LHMU. Mr Butler's statement is silent on the percentage of persons who have joined who are personal care attendants and your Honour will be aware that the LHMU coverage in the aged care sector extends beyond personal care attendants.

PN339

The other observation I make in relation to that if we are speaking in pragmatic terms is that it is nonetheless uncontested and clear that more members or not there aren't more agreements. The LHMU despite their pragmatic success as they describe it has yet to have pragmatic success even in the state system in terms of enterprise agreements so that effect can I refer you to Mr Bonner's statement, exhibit ANF108, paragraph 24, where he talks about research done in the state Commission system for agreements for personal care attendants.

PN340

THE SENIOR DEPUTY PRESIDENT: Just bear with me for one moment, Mr White. Yes, I have that statement.

PN341

MR WHITE: Yes, it is paragraph 24, your Honour, is the particular paragraph.

PN342

THE SENIOR DEPUTY PRESIDENT: Yes.

PN343

MR WHITE: There were submissions made about the stage approach and the ability of the ANF in the future to obtain agreements and the like. Your Honour, when you come to make the decision in my submission and I think it is clear that you must make it on the assumption that we have the coverage. That is, whether you judge the effectiveness or the likelihood of the ANF being able to obtain the certified agreement or award coverage or other industrial regulation. You do that on the assumption that we have coverage, that we have been successful and, your Honour, that must obviously fit in with what I have described this morning as the stated approach.

PN344

The next matter Mr Nolan spoke of was the relevance of participation on the state industrial system and it is put that activity in the state system is indicative of what the LHMU could achieve in the federal system. Now, your Honour, can I just briefly remind your Honour of submissions we make in relation to that contained in paragraph 15 of the outlined of submissions in reply and paragraph 24 of Mr Bonner's statement, but there are two aspects to considering the relevance, your Honour, which arose from these submissions.

PN345

The first aspect is the question of the activity of the LHMU and whether or not it is able based on its activity in the state to say that it is able to achieve industrial representation federally. Paragraph 24 of Mr Bonner's statement to which I have already taken you in a different context deposes to the fact that even in the state system where the LHMU claims its expertise there is still a girth of certified agreements or enterprise agreements relating to the terms and conditions of employment of personal care attendants. And so even if the LHMU gets full marks for participation in the state system nonetheless it's history within it doesn't justify a finding that it would be able to operate effectively in the federal system.

PN346

It has failed completed, in our submission, in relation to enterprise agreements and in our earlier submissions we have made comment about how it is we say they have also failed in terms of award coverage and dealing with awards. So the effectiveness measured against the LHMUs past results must, in our submission, result in a poor comparison to the effectiveness of the ANF when it comes particularly to the entering into of enterprise agreements.

PN347

The second aspect of the LHMU participation in the state system is the comparative aspect. The LHMU seeks to draw a negative comparison on terms of the ANF, but that is by relying on the absence of activity by the ANF. Whether or not Mr Austin finds the explanation satisfactory, the fact of the matter is the evidence before the Commission is clear as to the progression of the matters, the timing of the matters and the development in the changes of the word to personal care attendants, the development in training, the filing of the application an the moving by the ANF to follow in effect those persons who had always been eligible for membership.

PN348

The ANF has been criticised in that it doesn't have a queue of persons coming to the Commission telling the Commission they want to join the ANF. In fact there are at the time Ms Thomas made her statement 91 what we would describe as pending members. That is contained in Ms Thomas's statement, I won't take you to it in terms, your Honour, but in Ms Thomas's statement, exhibit ANF52, paragraph 22.

PN349

Your Honour would also be forgiven for not having a full understanding of all the witnesses, but Ms Neto was one of the witnesses called, sorry, ultimately not called I think and not cross-examined but her statement forms part of the proceedings by the ANF, and she was a pending member and she gave evidence of her desire to be able to become a member of the ANF.

PN350

In relation to the submission that the ANF is somehow putting down personal care attendants or acting against their interest or trying to confine them to roles which will somehow affect their capacity to work. Your Honour, this is an intriguing submission. It is an intriguing submission for a number of reasons. We address in part by paragraph 9 of Mr Bonner's supplementary statement and in effect, your Honour, that is in essence what I submitted to your earlier, that is, that it is appropriate that people give care appropriate to their level of training.

PN351

But, your Honour, the main reason we find it intriguing is this. For all of the history of the HSE award until its review only two or three years ago and most recently, there was no reference in it to training. When it was negotiated in terms of the - it wasn't the award simplification, it was the structural efficiency principle, it goes back that far, despite there being processes in that, and bearing in mind the Metals case, Keogh DP's decision in particular about having levels and training, it was until - - -

PN352

THE SENIOR DEPUTY PRESIDENT: I have heard of it.

PN353

MR WHITE: Sorry, your Honour.

PN354

THE SENIOR DEPUTY PRESIDENT: I have heard of it, Mr White.

PN355

MR WHITE: I am sure, but the fact of the matter is it wasn't until two or three years ago in the HSE restructuring case, 2003, that the Miscellaneous Workers Union ever training into their awards. At the same time that that was happening it was the ANF, in my submission, through its activity in the training regime under the new training authorities and the like that in effect put forward and established a career path for PCAs. Ms Roberts gave evidence about training and the fact of the matter is now as part of the training persons who do certificate III or certificate IV can count that training or a large part of it towards enrolled nurse training and those persons are able to count large parts of that training towards their registered nurse training.

PN356

So at the same time as the LHMU ignoring training and ignoring the structural efficiency principle in the HSE award, the ANF through its participation in the training development was in fact creating the career path for personal care attendants. To now make the submission that somehow the ANF has deliberately kept these workers untrained in circumstances where it is now a registered training authority providing training is unsustainable. Your Honour, I don't believe that Mr Austin raised any new points which I haven't addressed relevantly in my reply to Mr Nolan's submissions and, accordingly, unless there is any questions you have, those are the submissions.

PN357

THE SENIOR DEPUTY PRESIDENT: No, I have no questions of you, thank you, Mr White. I am going to reserve a decision in the matter. My customary practice is to advise the parties of when they might expect a decision and I would hope to be able to provide the parties with a decision within the next three to four weeks. The only observation I would make to all parties in that regard is it is in one sense somewhat ironic that over that three to four weeks the industrial world in which we live may change and I think it appropriate simply to alert the parties to the fact that if any of the parties were minded to review any of their positions over that time and engage in discussions to the effect such that impacted upon the decision that I have been called upon to make then it is open to the parties to advise me accordingly. I would hate to devote a great deal of thought only to find you folks had sorted out the issue amongst yourselves. I will adjourn the matter on that basis.

<ADJOURNED ACCORDINGLY [2.27PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ANF106 OUTLINE OF ARGUMENT PN92
EXHIBIT #ANF107 OUTLINE OF SUBMISSIONS IN REPLY TO THE LHMU AND SOUTH AUSTRALIAN CHAMBER OF COMMERCE SUBMISSIONS PN92
EXHIBIT #LHMU29 OUTLINE OF ARGUMENT PROVIDED BY THE LHMU ON 13/10/2005 PN92
EXHIBIT #BSA36 OUTLINE OF SUBMISSIONS OF BUSINESS SA PN92
EXHIBIT #BSA37 STATEMENT OF MS VAN GORP PN122
EXHIBIT #LHMU30 STATEMENT OF MR BUTLER PN122
ROBERT BONNER, SWORN PN142
EXAMINATION-IN-CHIEF BY MR WHITE PN142
EXHIBIT #ANF108 STATEMENT OF ROBERT BONNER PN147
EXHIBIT #ANF109 SUPPLEMENTARY STATEMENT OF ROBERT BONNER PN150
CROSS-EXAMINATION BY MR NOLAN PN157
CROSS-EXAMINATION BY MR AUSTIN PN173
RE-EXAMINATION BY MR WHITE PN179
THE WITNESS WITHDREW PN184
EXHIBIT #BSA38 STATEMENT OF MR DAVIS PN230