AG2004/7580, Transcript of Proceedings [2005] AIRCTrans 389 (17 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10485

SENIOR DEPUTY PRESIDENT KAUFMAN

AG2004/7580

s.170LK - agreement with employees (division 2)

APPLICATION BY ACTIVE CARE ATTENDANT CARE AGENCY T/AS ACTIVE CARE
(AG2004/7580)
Home and Community Care Award 2001

MELBOURNE

9.33AM, FRIDAY, 28 JANUARY 2005

Continued from 4/11/2004

PN1

MR C BURRELL: I think I have already sought leave in the previous hearing to appear on behalf of Active Care Attendant Care Agency.

PN2

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Burell, your leave continues. I have received your emailed submission sent on the 29 November. I have re-listed this matter because there are some areas that concern me. It seems to me to be pretty clear that the agreement does not pass the no disadvantage test and I think it is almost tacitly acknowledged in your submission that I should nevertheless certify it because it is in the public interest to do so. Do you know anything about the Home and Community Care Award, Mr Burrell, that we are using to assess the no disadvantage test against?

PN3

MR BURRELL: I know about it from the terms and provisions that are in it and from the discussions that I have had with, obviously my client, in regards to it. The reason why it was chosen or why it put forward was because it was as close as possible an award of the Commission which reflected the nature of the work that was being performed by my client, as compared, even though it was a more an enterprise specific award for a better term.

PN4

THE SENIOR DEPUTY PRESIDENT: Yes, and I have researched that this morning and it was originally made by consent. Yet I know it is the award that is often used for the no disadvantage test in matters of this kind. I suppose the fact that it is a consent award has some varying on the public interest, would you submit that?

PN5

MR BURRELL: It would, I would expect, yes.

PN6

THE SENIOR DEPUTY PRESIDENT: Well, you better expand that a bit,
Mr Burrell, I am not here to make your submission for you.

PN7

MR BURRELL: No, no, that is all right. Look, your Honour, I must admit I had not researched it myself to see that it was not a - I had not paid any attention to the fact that it was an award made by consent. It obviously makes it a little bit different that both the parties to that particular claim and I think it was the ASU I think is the union that is a party to that.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes.

PN9

MR BURRELL: And have obviously sat down and gone through and worked out the terms by themselves and reached consent so the matter did not have to be agitated before the Commission or provisions did not have to be agitated before the Commission in regards to a number of the standards and to ensure that it meets the relevant requirements of the Act and the principles have been set down in test case standards, et cetera. Although, I am sure the Commission when it made took those into consideration.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes. I am sure that it does and it has been simplified.

PN11

MR BURRELL: Yes. I think from our perspective, your Honour, is that as I noted, it is an award that we said was closest fit, the best fit I think, for the purposes of this case and my client's business, I think you can see from the submissions we have made, they operate in a pretty, and your Honour might be pretty well aware, but they operate on a fairly tight market place to provide the nature of the services they do.

PN12

THE SENIOR DEPUTY PRESIDENT: I would like you to expand a bit more on that for me too. It is a profit making organisation I take it?

PN13

MR BURRELL: It is run as a business and I would see that as an intention to make profits. I think the margins of profits from my instructions from my clients are not of high magnitude.

PN14

THE SENIOR DEPUTY PRESIDENT: There is no evidence as to that.

PN15

MR BURRELL: I understand that and you are only accepting my submissions from the bar table on that point.

PN16

THE SENIOR DEPUTY PRESIDENT: While we are on that, how many directors are there and how many people are managerial?

PN17

MR BURRELL: There is two directors. One of them you met, or who participated in the earlier proceeding which was Jenny Syme, she is one of the directors of it and her husband is the other director and they both work in the business. One is in effect, if you want to say, the managing director which is Jenny and Mark assists in running the business but also is involved in actually providing care and assisting the clients of Active Care as well. I think he takes them out at times to have games of golf and assists them in doing their shopping and attending the banks and so forth as well.

PN18

THE SENIOR DEPUTY PRESIDENT: Now, Mr Burrell, this is the first time I have asked this question in any hearing, are you in a position to indicate to me what sort of salaries they draw from the business?

PN19

MR BURRELL: No, I am not, your Honour. I am not able to provide you with that sort of information.

PN20

THE SENIOR DEPUTY PRESIDENT: And the reason I ask it is because as indicated to you, it is fairly clear to me that the agreement does not meet the
no disadvantage test. I think it is relevant in those circumstances to have some indication of what salaries the directors are drawing given that there are 70-odd employees who will be earning less than they would under the award.

PN21

MR BURRELL: Look, your Honour, the only thing I can say in that regard and you obviously have to take it at face value that I do not have the evidence to be able to put before you - - -

PN22

THE SENIOR DEPUTY PRESIDENT: Well, you are an officer of the Supreme Court of Victoria, I take what you tell me as read, Mr Burrell.

PN23

MR BURRELL: From my discussions and involvement with the directors of Active Care, they are in this business because they believe in providing the care to the people in which they do and they run their business for that purpose. They are not, for a better term, in it to make money and make lots of money. They are in it for the provision of the care and service that, if I remember correctly, they have really sort of fallen into it because of circumstances which they have been involved in from a personal level and I think where one of the directors, Mark Syme had actually cared for his father at one stage and it was their involvement in that process which sort of led them too be involved in the running and organisation like they are.

PN24

So it is not about being involved in it for major money making purposes and to draw on the incomes that come in for the purposes of self gratitude. It is more about being there to be able to provide that service to the people who would not necessarily perhaps get it or would be fighting to get the service that is out there.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. Just remind me again about the vote, would you. I think there was some 70-odd people employed, the vote involved approximately 30 from memory and I am not sure by what majority it was approved.

PN26

MR BURRELL: I am just looking through the original application, sir, so just bear with me for a moment, your Honour. There was a valid majority of employees who voted in favour and just looking through the correspondence that came to me from Ms Syme confirming the outcome of the vote.

PN27

THE SENIOR DEPUTY PRESIDENT: Yes, at paragraph 41 of the transcript and you told me that there was 33 staff present on the night and an overwhelming majority voted in favour - - -

PN28

MR BURRELL: I have actually got, if you would just bear with me, your Honour, I think I have actually correspondence from Ms Syme confirming the exact number of employees who voted in favour for the agreement. Your Honour, out of the ballot that was taken of 33, there were 29 yes votes, five no votes and one abstention who left early, probably due to personal circumstances I think. I mean it was an overwhelming majority of the people who voted in favour of the - who were present at that meeting on the night.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes, but that was only something less than 50 per cent of the total work force.

PN30

MR BURRELL: Yes. I mean everyone had the - due notice given to everybody of a vote was taking place and to come along. I do know that everyone was given the opportunity as well to come and speak to either Jenny or Mark for the duration and longer than of the 14 day period to raise any concerns or issues that were raised. A number of the terms and provisions that were in the agreement were discussed at length at that meeting. I know because I was there explaining the terms of the agreement and going through it with the employees. We did, I remember, we addressed the issues about - talked about the issues of overtime and even the annual leave loading and so forth. They were explained to the employees why Active Care had taken the approach that it had. I am sure that perhaps some time in the future, I hope, I think Active Care can hope that at some stage in the future, given that now all of Victoria are having to be subject to more common rule awards and there is going to have to be significant changes to the way in which a lot of businesses like Active Care who receive funding from government departments and bodies and statutory bodies or other authorities, are going to have to look at their, I suppose the component they contribute, in light of the fact that wage rates and additional costs are now more the norm in Victoria as a result of the legislative changes than what they were perhaps when the original contracts were entered into.

PN31

THE SENIOR DEPUTY PRESIDENT: Am I right in thinking that if there is no industrial instrument binding Active Care it will not obtain the funding, is that the way it works?

PN32

MR BURRELL: No. I do not believe that is necessarily how it works. If there was not this certified agreement in place there would be - well, there is a question I think about actually award would apply.

PN33

THE SENIOR DEPUTY PRESIDENT: Obviously. None, as far as I am aware.

PN34

MR BURRELL: No. That is what I mean, there would probably be a view by perhaps some unions that may be a different award would be applied and I think your Honour will recall that Active care has been the subject of an issued section 99 dispute, I think was raised by the HSUA some time ago which I don't recall, your Honour.

PN35

THE SENIOR DEPUTY PRESIDENT: No, I don't recall that.

PN36

MR BURRELL: But in that matter there was no dispute finding there found. Initially at the starting point, I think, that Active Care would probably still continue on in a non award environment. But I think Active Care has been pretty proactive in its approach here of realising that something will eventually come out in the wash and that there will be some form of award regulation that will apply to this particular industry so it has taken the proactive approach of trying to set up its organisation and create the terms and conditions that it has to, I think, at least secure its position over the next three years.

PN37

THE SENIOR DEPUTY PRESIDENT: Yes.

PN38

MR BURRELL: To enable it to at least operate and then work on its next, hopefully another agreement, three years down the track, which then when it comes before the Commission, hopefully funding situations and the other issues that perhaps affect this agreement will be hopefully have been rectified or realised and Active Care will not necessarily have to go through the process it is going through at the moment.

PN39

THE SENIOR DEPUTY PRESIDENT: Through the agony that I am putting you through.

PN40

MR BURRELL: That is okay. That is your job.

PN41

THE SENIOR DEPUTY PRESIDENT: Mr Burrell, let me just take you to a couple of the aspects of the agreement that I think we discussed on the last occasion. You might be able to satisfy me by perhaps giving some undertakings or explaining why you should not give undertakings. There are no classifications corresponding with levels four and five in the award and I think on the last occasion you said that Active Care does not intend to employ anybody who would fall within those classifications. Are you able to give me an undertaking that were it to employ people who would fall within the award descriptors for those levels that it would pay those people the salaries provided for by the award?

PN42

MR BURRELL: Absolutely, your Honour, we are happy to provide that undertaking, and my instructions are, is that if Active Care was in that position it would be doing that. It does see that the award that is being designated for the purpose of the no disadvantage test as being that. In effect it is common rule that if you want to say no, it does not have that status, and it would be utilised for that purpose if it did arise.

PN43

THE SENIOR DEPUTY PRESIDENT: Yes. Very well. The other matter that causes me some concern, in particular, is the payment of overtime or the rate of payment for Sunday work. It is double time in the award and I think it is time and a half for the first three hours in the agreement. What is the incidence of Sunday work?

PN44

MR BURRELL: Very rare, I am instructed, very rare. If overtime work or work has to occur on - overtime work occur on Sunday, it is very rare, perhaps because an individual who they are caring for was not able to cared for during the week on their normal perhaps day and there has been a need to change it, or there has been a change it, or there has been a change or an urgent issue that has arisen that has required someone to attend but my instructions are that it is very rare for Sunday. Most of the caring takes place really on that Monday to Friday but there is a little bit that occurs on the Saturday and a little bit on the Sunday but it certainly is not a significant component of when people are required to be cared for.

PN45

THE SENIOR DEPUTY PRESIDENT: Yes. And in your submission you indicate that you are prepared to undertake to pay the 17 and a half percent annual leave loading.

PN46

MR BURRELL: If that was the requirement of the Commission that necessitated or was necessary for the agreement to pass the no disadvantage test and to be certified, or at least to be certifiable, then my client will be prepared to provide that undertaking and if necessary as part of the undertaking seek to make an application within a certain time frame, perhaps under 170MD to vary the agreement to provide for that 17 and a half per cent loading, similar to the terms in which it would apply, for example, in a common rule award for any annual leave to accrue on or after a particular date.

PN47

THE SENIOR DEPUTY PRESIDENT: Well, I am inclined to seek that undertaking unless you can persuade me to the contrary, Mr Burrell. My reasons are that it's a fairly normal incidence of most awards of the Commission these days. There are no matters in this agreement that provide for more pay to employees so as to offset the payment of that loading. It's not a huge sum, albeit I note your submission that it's nevertheless a significant sum for your client but it's obviously a sum that it can bear if it needs to. My inclination is to require the undertaking. I wouldn't require a variation of the agreement though.

PN48

MR BURRELL: Your Honour, as I said, my client would be - I mean the reason and I mean we have articulated the reasons that are in there of why it hasn't necessarily been included and I don't need to go through. It's obviously, and I don't need to labour on the point, a significant change from what my client has been subject to over the last number of years, as you know, under the minimum terms not having to pay an annual leave loading and now it's there and even though there's a question about whether it's there or not at the moment because there is no common rule award, it knows that for the purposes of the no disadvantage test the award that's there it includes it.

PN49

While my client would prefer for it to stay as it is, if it is the wish of the Commission that that undertaking be provided, then we would be happy to provide that undertaking, perhaps along the form that similar, as I noted earlier, similar to that that's provided for in the common rule awards, that the 17 and a half per cent annual leave loading will start to accrue for any annual leave.

PN50

THE SENIOR DEPUTY PRESIDENT: From the date of certification.

PN51

MR BURRELL: From the date of certification.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I do ask for that undertaking, Mr Burrell.

PN53

MR BURRELL: Well, we will provide that undertaking to the Commission.

PN54

THE SENIOR DEPUTY PRESIDENT: Well, you have just done that, or you will do that.

PN55

MR BURRELL: Yes.

PN56

THE SENIOR DEPUTY PRESIDENT: Yes. Well, thank you, Mr Burrell. I will certify the agreement having regard to your submissions and to the two undertakings that you have given, one in relation to the levels four and five, should any persons be employed who would fall within those award classifications, and secondly, having regard to your undertaking that a 17 and a half per cent loading will be paid on annual leave from today's date which will be the date on which the agreement will be certified. Beyond those matters, I am satisfied that all the statutory requirements have been met.

PN57

I don't believe that the no disadvantage test has been passed, but having regard to section 170 - can you help with me that? It's never where I think it is.

PN58

MR BURRELL: 170LT. I think it's (3), your Honour.

PN59

THE SENIOR DEPUTY PRESIDENT: Thank you. LT(3), I am satisfied that certifying the agreement is not contrary to the public interest and therefore it is taken to pass the no disadvantage test. So having achieved that degree of satisfaction, the agreement will be certified. It will be operate from today's date and I thank you for your attendance, Mr Burrell.

<ADJOURNED INDEFINITELY [9.52AM]