AG2005/2998, Transcript of Proceedings [2005] AIRCTrans 613 (10 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10700

JUSTICE GIUDICE, PRESIDENT
SENIOR DEPUTY PRESIDENT LLOYD
COMMISSIONER MANSFIELD

AG2005/2998

s.170LC - multiple business agreement

APPLICATION BY AGED & COMMUNITY SERVICES TASMANIA AND OTHERS
(AG2005/2998)
Health and Welfare Services - Private Sector - Nurses - Tasmania - Award 1996

MELBOURNE

TUESDAY, 01 MARCH 2005

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN MELBOURNE

PN1

MR M WATSON: I am from the Tasmanian Chamber of Commerce and Industry. I appear on behalf of the Aged and Community Services, Tasmania members listed in schedule A of the agreement and appearing with me is
MS J THOMAS.

PN2

MR C STRINGER: I appear for the Health Services Union of Australia, Tasmania Number 1 Branch.

PN3

MR N BLAKE: I appear for the Australian Nursing Federation.

PN4

JUSTICE GIUDICE: Thank you all. Mr Watson, could I ask you about who you are appearing on behalf of? Aged and Community Services, Tasmania, did you say?

PN5

MR WATSON: Yes, that's right, President. All of the employers in schedule A of the agreement are actually members of Aged and Community Services, Tasmania and that's who we represent.

PN6

JUSTICE GIUDICE: What is that body?

PN7

MR WATSON: It's the industry body for the aged care industry, not for profit, in Tasmania.

PN8

JUSTICE GIUDICE: Yes, all right, thank you. Who's to commence?

PN9

MR WATSON: I will, President, if that's okay.

PN10

JUSTICE GIUDICE: Yes, thanks.

PN11

MR WATSON: President and members of the bench, before you today you have the second agreement of this type for nursing in the aged care industry in Tasmania. This agreement will replace and supersede the Tasmanian Aged Care Nursing Enterprise Agreement 2001 which was certified by a Full Bench of this Commission by decision dated 7 January 2002, in print 912915, and that document has actually been provided as part of ANFs exhibit.

PN12

The circumstances for aged care in Tasmania generally have not changed in the past 3 years, and if anything the situation has got worse in terms of the government funding provisions to the not for profit aged care sector in Tasmania. The sector still has difficulty recruiting nurses, competing against the public sector and the acute private sector. Section 170LC of the Act states that:

PN13

A Full Bench of the Commission must not certify a multi business agreement unless it is satisfied that it is in the public interest to do so.

PN14

We put forward the following points in support of the public interest argument. The Federal Government's funding policy has hit Tasmania harder than any other state and this was an issue that was raised in the last agreement. It's been quite common since the last agreement was certified for aged care facilities around the state to embark on restructuring exercises which, not exclusively but in the main, are related to government funding shortfalls. As I've said there is difficulty in recruitment of nurses to the sector. The agreement, we believe, will continue to provide a stable industrial relations environment in this sector in Tasmania as the industry moves through a very tough period of time. Many employers do not, and cannot, afford to employ dedicated HR/IR people to negotiate these agreements and they rely on TCCI and Aged and Community Services, Tasmania for that support.

PN15

The agreement was negotiated over a reasonable period of time through a peak negotiating group including employer reps, union reps and employee reps from across the state. All parties, including employers, unions and employees agree that the model of negotiating for a multi business agreement for this sector is the most efficient for employers unions and employees and the end product of the agreement which you have before you today, we believe is a significant achievement given that we have 25 employers and both industry unions in full agreement.

PN16

We also say that there is genuine agreement between the parties that the process adopted for this agreement and the outcome, is certainly the most cost effective method of negotiating for this sector in Tasmania. The agreement passes the no disadvantage test and this is confirmed in the statutory declarations from all parties. The agreement was approved by a valid majority through meetings at all sites state wide. We believe the agreement doesn't offend the Commission's wage fixing principles and certainly not other interests and we would respectively ask the Commission to certify the agreement if it pleases.

PN17

JUSTICE GIUDICE: Yes. Mr Watson, there don't appear to be any details in the statutory declarations of the date of the approval by a valid majority in each - or any details of the voting by location?

PN18

MR WATSON: That's right, President. What happened - the logistics of actually getting an agreement like this, the voting process through some 30-odd facilities, is quite a mammoth exercise. We do actually have all the details of each vote at each particular site if you need to see those, but what we've done in the statutory declaration is simply provided a summary of the number of employees covered by the agreement, and certainly confirm that a valid majority has approved the agreement. They would've voted on different dates throughout the state. We can certainly get those for you if you need them, but I don't have them today unfortunately.

PN19

JUSTICE GIUDICE: There are implications in terms of time limits also arising from the date at which the approval was obtained.

PN20

MR WATSON: President, could I say that we're obviously aware of the 21 day time limit in the Act. If there is any discretion for the Commission to approve the agreement outside the 21 day time limit, I can confirm and I would imagine this would be confirmed by the union parties, that there certainly has not been any industrial action in the interim.

PN21

JUSTICE GIUDICE: Well, that sounds to me, Mr Watson, as though you are saying that the 21 day limit has not been observed.

PN22

MR WATSON: Well, I would need to confirm that, President, but it's possible that given that we had so many facilities that had to go through the voting process with all their staff and that was done, as I say, right across the state, I guess I'll probably leave it at that. If you need the information we can certainly get it to you.

PN23

JUSTICE GIUDICE: I think we'd like to see that, that's the voting details and the dates at each of the establishments.

PN24

MR WATSON: Yes, we can certainly provide that and I'll deal with that immediately after the hearing, President.

PN25

JUSTICE GIUDICE: Yes, if I could ask you about the aged care nursing sector more generally, what would be the number of employers in the industry?

PN26

MR WATSON: There would be - what we have in Tasmania which I don't think is any different to any other state, is the not for profit aged care sector, which is the majority of employers and then we have the for profit sector which is a handful in Tasmania. I think there might be four or five of those. So, there will be approximately, I would say in total, probably about 40 separate employers in this sector in Tasmania and that includes the not for profit and the for profit. The majority of those are the not for profits as per the schedule A of this agreement.

PN27

JUSTICE GIUDICE: Well, how many not for profit employers would there be in the sector in Tasmania?

PN28

MR WATSON: President, I can't give an exact figure on that today, but I would say that we would have probably, certainly the 25 in schedule A and there might be three or four others across the state who have either decided to do their own agreement, or don't have an agreement at all.

PN29

JUSTICE GIUDICE: Well, there were 37 employers in the last agreement, there are 25 in this one.

PN30

MR WATSON: Yes, the reason for that is that since the last agreement there have been a number of rationalisations and there have been a number of, I suppose what we might call loosely, mergers, so therefore what might have appeared, say as, five or six separate employers in the last agreement now appears under one name for one employer.

PN31

JUSTICE GIUDICE: What's the size of the - yes go ahead Mr Watson.

PN32

MR WATSON: I'm sorry President. The other thing too, is that the 2001 agreement also included the for profit sector, and this time around the for profit sector have done separate agreements.

PN33

JUSTICE GIUDICE: I see

PN34

MR WATSON: So that's the other reason for a reduction in the numbers.

PN35

SENIOR DEPUTY PRESIDENT LLOYD: I would like to ask you - you referred in your submission, to some funding uncertainty issues. Could you just give us a bit more information about what you are actually referring to there?

PN36

MR WATSON: Certainly. The Federal Government's funding policy for aged care throughout the country has been one where they have - I think it was probably about 5 years ago now, they embarked on what they call a coalescence and that is moving to a single funding formula for all aged care facilities across the country. Now, prior to that we had a different system where each state was funded differently, and Tasmania, prior to the new government funding policy, was at the top of the tree. So in other words, they actually received more funding on a per bed basis than any other state.

PN37

As the Federal Government moved to coalesce the rate back to a single funding formula in real terms Tasmanian aged care providers receive less as each year goes on as the Federal Government moved to the one funding formula. So that's what we talked about in terms of funding, and I think it is over an 8 year period the coalescence is to come through, and it is just simply based on the Federal Government's policy that they believe there should be no difference. There should be one funding formula for the whole country.

PN38

SENIOR DEPUTY PRESIDENT LLOYD: Do the organisations here today go through an accreditation process?

PN39

MR WATSON: They do, correct.

PN40

SENIOR DEPUTY PRESIDENT LLOYD: Have they all been accredited?

PN41

MR WATSON: I believe so, but again, if you need absolute confirmation of that I would need to confirm that, Deputy President, but I believe that is the case.

PN42

SENIOR DEPUTY PRESIDENT LLOYD: Was the process guaranteed funding for a number of years if you become accredited? Is that the way the scheme works?

PN43

MR WATSON: I am not sure that it is actually tied to the funding per se, but what happens is that if you are not accredited I think there are problems with the government in terms of whether or not you actually have licences to operate.

PN44

JUSTICE GIUDICE: Mr Watson, you seem to be getting all the questions. That's because you went first, but can I just ask about the size of the workforce of these employers? There is something in the statutory declarations which suggests that the numbers might be small, but are you able to give us any information about that?

PN45

MR WATSON: Yes, I think from memory, President, the statutory declaration says that there were 925 employees covered by the agreement. Now that number is scattered across the state in facilities that have multiple hundreds of beds for residents, through to facilities that may have 20 or 30 beds, and obviously your concentration of nursing staff in the bigger facilities is a lot higher compared to some of the country facilities where you might only see two, three or four RNs employed. So it is a mixed bag and it simply depends on the number of beds in each facility.

PN46

JUSTICE GIUDICE: Well, the average number of employees is over 30, which suggests that some of these establishments are fairly large.

PN47

MR WATSON: Some of them are, President, that's correct, but we do have a fairly wide spectrum across the State, as I say, particularly in some of the country areas where the facilities might be as low as 30 or 40 beds compared to one facility in Hobart which has 600 beds.

PN48

JUSTICE GIUDICE: Well, why should a facility of that size be unable to negotiate its own arrangements?

PN49

MR WATSON: Well, I suppose in that particular case there is probably no reason why they could not have done their own agreement, but as I said, the main reason is that the sector in Tasmania, and bearing in mind that that particular facility is no different to the others in terms of the funding formula, but they believe - and I do not think it is fair to name them, but I will say to you that they believe that it was certainly in the public interest that they would negotiate as a sector along with all the other employers.

PN50

JUSTICE GIUDICE: Yes, thank you.

PN51

SENIOR DEPUTY PRESIDENT LLOYD: Mr Watson, there is one more question on accreditation. I understand that one of the aspects which is tested is human resource and staff arrangements. Is that the case, do you know?

PN52

MR WATSON: I believe that is the case, Deputy President, yes.

PN53

SENIOR DEPUTY PRESIDENT LLOYD: Yes. So would the accreditor agency would be, I imagine, assessing whether there is adequate staffing. Is that your understanding?

PN54

MR WATSON: Sorry, I thought your question probably went more to human resources generally, but in terms of staffing, my understanding is that that is an issue for each facility to deal with based on their resident case mix and what they believe is appropriate from time to time, bearing in mind that resident classification levels do change quite often.

PN55

JUSTICE GIUDICE: Well, Mr Watson, the other issue is, this is an agreement which if it were not a multiple business agreement would be I think under 170LO or LP. It is further settlement of an industrial dispute, is that right?

PN56

MR WATSON: Did you say, President, that if it wasn't a multi business agreement?

PN57

JUSTICE GIUDICE: Well, yes. I should not have actually expressed it way, but the agreement is not of the kind described in 170LJ or 170LK. It is rather, I think, section 170L - - -

PN58

MR WATSON: LC.

PN59

JUSTICE GIUDICE: Well, I think, LO. LC is certainly relevant, but don't you rely on the settlement or further settlement of a dispute or disputes?

PN60

MR WATSON: Yes, I think that would be right, President. I suppose if I can put it this way, that if there were 25 separate agreements before you under this format, they would certainly be done under section 170LJ, which would be the settlement of disputes section. So I would agree with that.

PN61

JUSTICE GIUDICE: Paragraph 6.1 of the statutory declaration - I am looking at Ms Ellis' declaration, but I think they are probably all the same. You see it says:

PN62

The agreement is made in further settlement of the industrial disputes found to exist in C numbers 00606 of 1983 and 30487 of 1991.

PN63

MR WATSON: Yes

PN64

JUSTICE GIUDICE: That suggests to me that we would need to be satisfied that the terms of the agreement are within the ambit of those disputes.

PN65

MR WATSON: Yes, I don't argue with that, President. I think we have pretty much followed the same process that we adopted last time when this agreement was approved, and I believe from memory that those dispute numbers were the ones that we used last time as well.

PN66

JUSTICE GIUDICE: Yes, well, speaking for myself, I would like to be satisfied that the terms of the agreement are within the ambit of the disputes and I suppose that can only be ascertained by permitting you to send us a copy of the logs or the dispute findings as necessary, together with an indication that all of the matters are within ambit.

PN67

MR WATSON: President, with respect, it may be something that may be able to be answered by the union reps at the hearing today in relation to the content of those logs, but if it can't be, then certainly we can locate those and forward them to you.

PN68

JUSTICE GIUDICE: Yes, well although it might sound like it, we're not actually looking for trouble. We're just trying to satisfy ourselves that the statutory requirements have been met.

PN69

MR WATSON: I understand that.

PN70

JUSTICE GIUDICE: And that's why I referred to section 170LO. It may be that there's a problem with 170LO because it refers to single businesses but in any event perhaps it's something you should give some consideration to.

PN71

MR WATSON: President, I think the - and I don't know whether this able to be done or not, but if the agreement - is there an ability for the agreement to be approved between employers who are constitutional corporations and unions? Do you have to go down that track or not?

PN72

JUSTICE GIUDICE: Well there is and that's I suppose by far the majority of agreements are of that kind.

PN73

MR WATSON: Because I think probably that maybe that's where - that may be the answer to this issue, because certainly the statutory declaration confirms the constitutional corporation nature of each of the employers named in schedule A, and if that were an easier path and acceptable to the Commission, well maybe that's the path we need to go down.

PN74

JUSTICE GIUDICE: Yes, that you wouldn't rely on the disputes at all.

PN75

MR WATSON: I understand that, yes.

PN76

JUSTICE GIUDICE: That may be a solution to it. Very well, Mr Stringer? Do you have any submissions to make about the agreement generally or any of the matters we've asked about?

PN77

MR STRINGER: I would just strongly support the submission put by Mr Watson, Mr President.

PN78

JUSTICE GIUDICE: Yes. All right, thank you. Mr Blake?

PN79

MR BLAKE: Thank you, your Honour. If the Commission pleases, the agreement is to cover the 25 not for profit residential aged care facilities in Tasmania in regard to the employment of registered and enrolled nurses employed in those facilities. A couple of points I would like to add to the submissions of Mr Watson. First of all, in relation to the funding of those establishments, the funding is based broadly on the basis of the acuity of the resident. If the funding agency considers that the acuity of the resident is high, therefore requires nursing staff and the funding is higher. In relation to the majority of aged care facilities in Tasmania, there would be a broad mix of residents with varying acuity levels, and the numbers of registered and enrolled nurses throughout those facilities would differ.

PN80

A couple of points that should be noted. Generally speaking, the numbers of registered and enrolled nurses as part of the workforce at a particular institution would be quite small. The majority of workers would be ancillary staff or personal care attendants. Secondly, if the Commission pleases, it would be fair to say that the majority of registered and enrolled nurses, perhaps 60 to 70 per cent of those persons would be either part-time or casual employees, and that would account to some degree to the large numbers that are recorded in the declarations of the parties.

PN81

As Mr Watson has pointed out, should this agreement be certified by this Commission, it will replace the Tasmanian Aged Care Nursing Employees Agreement 2001. In determining that the 2001 Agreement was in the public interest to be certified as a multi-employer agreement, the bench at the time took into account the economic circumstances that existed. The fact that the industry in Tasmania was made up of a reasonable number of varying but small to medium employers who did not have human resource or industrial relations capacity and relied heavily on the efforts of their employer organisations, and that the
multi business agreement was at the time the most cost effective method of regulating the industrial environment in Tasmania.

PN82

It is our submission, if the Commission pleases, that in 2005, that situation has not changed a great deal and those public interest considerations continue to apply. I think it is also worth adding that, in relation to the aged care industry generally, and particularly the not for profit sector, it remains a very highly regulated industry. Funding that is provided by the Federal government which makes up over 90 per cent of the funding, is highly regulated and highly targeted. The employers have very little capacity to generate revenues. Their fees are capped, based on the ability of the resident to pay moneys and also based on the acuity of the resident.

PN83

The ability of these employers to move resources around their establishments is strictly controlled, so in our submission, there is a very small ability for these employers to seek enterprise specific efficiencies or productivities, and that the approach that the industry has taken, both in Tasmania and the rest of the country, is to pursue those efficiencies and productivities on a sector-wide basis and that's how we've approached the issue.

PN84

And finally, if the Commission pleases, I think it is worth noting that it is often the case that employees in this industry would work for more than one employer. They may do two or three shifts per week for two or three employers in this industry. We would submit that it is in the public interest for the wages and conditions of employment across the industry, in those circumstances, to be as even or as common as possible, within the constraints of the Workplace Relations Act, and I would support the certification of the agreement, if the Commission pleases. I should also say that, I can make available, if the Commission wishes, the original dispute findings and a log of claims in relation to these matters. Thank you.

PN85

JUSTICE GIUDICE: Mr Blake, what do you say about the issue as to whether the agreement is under 170LJ or 170LO?

PN86

MR BLAKE: I haven't got any instructions in relation to the preference of the branch to the final outcome, but it would seem to me that the most efficient approach would be 170LO in relation to - certain ones of the matter in respect of the bargaining periods themselves rather than a finding of dispute of this Commission some time ago. But as I say, I don't have any instructions or advice in relation to that. as to the wishes of our branch in Tasmania.

PN87

JUSTICE GIUDICE: Yes. Well presumably they want it certified and it would be a question of whether the powers there under one section or the other.

PN88

MR BLAKE: Yes. I certainly would say your Honour, that the power is there under one section 170LO. My reading of the agreement, I'm confident that the original dispute finding in the log of the claims would cover all the matters in the agreement.

PN89

JUSTICE GIUDICE: It's sufficient ambit to the wages.

PN90

MR BLAKE: No question in my view, but I don't have a log of claims with me and I would need to go and check that, but - - -

PN91

JUSTICE GIUDICE: That would be so in relation to the ANF.

PN92

MR BLAKE: Yes, and that's not an issue.

PN93

JUSTICE GIUDICE: It would then be the other union.

PN94

MR BLAKE: In respect of the employees, there is no difference, but certainly the HSUA at some stage, served their own log of claims. Our preference is that the agreement be certified, if that be under 170LO, then so be it.

PN95

JUSTICE GIUDICE: Yes. Mr Blake, do I understand from what you said that in this sector, there may be some establishments which don't employ nurses at all, low level care establishments?

PN96

MR BLAKE: There would be establishments there. The vast majority of the residents would be referred to as hostel type residents.

PN97

JUSTICE GIUDICE: Hostel, yes.

PN98

MR BLAKE: Well, it wouldn't require the high levels of care as to some of the aged care facilities, but in each of the facilities there would be at least one registered or enrolled nurse, the regulations require that. But in a circumstance where, say, 50 per cent of the residents had high levels of acuity, then there would be more nurses employed, yes.

PN99

JUSTICE GIUDICE: The other question that I have, and I'd be interested in any submissions about this, is whether there are agreements, multiple business agreements of this kind, operating in other states in this sector. Can anybody enlighten me as to whether there are such agreements?

PN100

MR WATSON: President, I might go first if I can, simply to indicate that I don't know. I think Mr Blake is probably in the best position to answer that given that he is the federal Australian Nursing Federation rep.

PN101

JUSTICE GIUDICE: Yes.

PN102

MR BLAKE: In South Australia, your Honour, there was an agreement covering the whole of the sector in 1997, certified by this Commission and they have been replaced by sector wide agreements coming off the profit sector and any State government aged care facilities to be covered by the public sector agreement in that state. I don't believe that that is replicated in any other state that I am aware of, although I think it is fair to say where there are separate agreements they are very similar.

PN103

MR WATSON: President, if I may, the other thing that I would say is, and this is probably not much different in the other states, but certainly in the state of Tasmania, the Tasmanian State Government has an agreement with all of its public sector nurses right across the state, which is one agreement and, even though it applies to multiple sites, I suppose for all intents and purposes it probably is a multiple business agreement. The only difference being that there is only one employer in the government and that is the minister, and that is an agreement certified by the Commission, which is in existence at the moment. So for what it is worth, I just put that to you.

PN104

JUSTICE GIUDICE: Yes.

PN105

COMMISSIONER MANSFIELD: That's multiple sites, Mr Watson, not multiple employers?

PN106

MR WATSON: That's correct, Commissioner.

PN107

MR BLAKE: Can I say, your Honour, for what it is worth that in the states of New South Wales and Queensland where the state industrial tribunals manage those areas, there is one instrument.

PN108

JUSTICE GIUDICE: Yes.

PN109

COMMISSIONER MANSFIELD: For multiple employers, Mr Blake?

PN110

MR BLAKE: Yes, there is.

PN111

JUSTICE GIUDICE: Given the technology involved, we would like to confer amongst ourselves for a few moments, and probably the best way to do that is to adjourn, but we will ask you to wait if you would not mind so that we can get as far as we can today. So we will adjourn for about 5 minutes.

<SHORT ADJOURNMENT [10.41AM]
<RESUMED [10.54AM]

PN112

JUSTICE GIUDICE: Thank you for waiting. Could I ask the parties to obtain some material for us? That is the material that I referred to in discussion with Mr Watson earlier. We would like to have the voting details from each employer, and if in the case of the employer there are multiple establishments, we would like the figures for each establishment, including the dates of the approval in each case, and we will then look at that material to see whether there has been an approval by a valid majority. Could we also have please, and perhaps, Mr Watson, you are the one to provide this, the break down of employee numbers by establishment and employer into full-time, part-time and casual. And the final thing is that we would appreciate any additional written submissions addressing the question of the satisfaction of the public interest requirement in section 170LC.

PN113

We are at this stage, considering whether the submissions and material which have been produced are sufficient to meet that public interest requirement. So we will provide a further opportunity for any submissions about that. Could we have that material and submissions say within - would 2 weeks be an appropriate time?

PN114

MR WATSON: That is certainly enough time for us, President.

PN115

JUSTICE GIUDICE: Yes. So if that material could be filed on or before 15 March, and we will leave it up to the parties to discuss how the submissions are done. If you wish to put in separate submissions, by all means, but it can be done jointly if you prefer. The other question that I had, and hopefully this can be answered fairly quickly, is whether the existence of a certified agreement has any relevance in terms of the government funding arrangements?

PN116

MR BLAKE: The short answer is no, your Honour.

PN117

JUSTICE GIUDICE: No.

PN118

MR BLAKE: No.

PN119

MR WATSON: I don't believe so, President, either.

PN120

JUSTICE GIUDICE: Yes, thank you. Are there any questions about that or any further submissions?

PN121

MR WATSON: President, if I may, just to let you know, in the break I have checked in relation to the voting process, and I can say that there certainly was more than a 21 day period from the date of the first vote until the agreement was lodged. So as I said before, the actual logistics of the voting process across the state was quite a mammoth task. The facts simply are that there was more than a 21 day period from the date of the first vote that was put in, through to when the agreement was lodged. So I guess I raise that now to say that, is that going to be an issue for us given that the 21 day, the strict 21 day time limit has not been met?

PN122

JUSTICE GIUDICE: Well, I think that what you should do in that respect is give us a note of what you think we should do. I know that on one view of it there is a power to extend time and, if that is the case, then why we should extend the time.

PN123

MR WATSON: Thank you.

PN124

JUSTICE GIUDICE: But we will have to consider that. Thank you, Mr Watson, and thank you to all of the people who have attended. We will look forward to your submissions and we will adjourn now.

<ADJOURNED INDEFINITELY [10.59AM]