AG2005/2727, Transcript of Proceedings [2005] AIRCTrans 954 (21 April 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11203-1

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2005/2727

APPLICATION BY ROYAL FLYING DOCTOR SERVICE OF AUSTRALIA, CENTRAL OPERATIONS INCORPORATED & DEVLIN, BRENDAN
s.170LK - Agreement with employees (Division 2)
(AG2005/2727)

ADELAIDE

12.21PM, MONDAY, 11 APRIL 2005

PN1

MR M FOLEY: I seek leave for the employer, and with me MR G McHUGH, flight nurse manager.

PN2

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Foley.

PN3

MR B DEVLIN: Employee representative.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Devlin, can I take it that you have got no objection to Mr Foley representing the employer?

PN5

MR DEVLIN: No objection.

PN6

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN7

MS E DABARS: I am representing the Australian Nursing Federation.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. Now, Ms Dabars, can I take it that you also don't have any objection to Mr Foley's application?
Ms Dabars?

PN9

MS DABARS: Sorry. No.

PN10

THE SENIOR DEPUTY PRESIDENT: Mr Foley, I grant that application.

PN11

MR FOLEY: Thank you sir.

PN12

THE SENIOR DEPUTY PRESIDENT: I can advise the parties that I have read both the statutory declarations and the agreement itself. Mr Foley, I have noted that the response to question 5.7 confirms the role of the ANF in terms of meeting and conferring, and I have also noted that I have received from the ANF an advice seeking that the ANF be made a party to the agreement. Can I take it that the employer has no objection in that regard?

PN13

MR FOLEY: Yes, that is correct sir.

PN14

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Foley, can I then take you to clause 6.4. Now, I am not quite sure how I should read the parties response in that regard. Is it the case that the answer to 6.4 is simply this, that the award clauses do not apply or is it the case that I should take it that there are potential reductions in award benefits arising from each of those particular clauses?

PN15

MR FOLEY: Sir, thank you. The intention of that provision in the statutory declarations is to indicate that those provisions of the award do not apply.

PN16

THE SENIOR DEPUTY PRESIDENT: I see. Now, if I take you then back up to 6.3, there the statutory declaration indicates that there is some reduction in award benefits. Now, are you in a position to tell me which clauses of the award have been superseded so as to provide for a benefit established by that award to be reduced.

PN17

MR FOLEY: Yes, sir. The intention of 6.3 - my instructions are, sir, that 6.3 and 6.4 are - that the answers to those two questions are interrelated ie. the award clauses indicated do not apply but otherwise would do in the terms of the agreement. The provisions in the agreement before you sir, we say make up for that difference. For example sir, clause 12, the discrimination, clause 13, the dispute resolution, clause 14, right of entry, clause 15, includes two weeks severance pay per year of service on redundancy should that occur. Additionally sir, or moreover in a general approach the remuneration provided for the agreement in the indicated schedules, they being schedule 3, 4 and 1 and schedule 2 for the casual employees, we say compensate.

PN18

THE SENIOR DEPUTY PRESIDENT: You see, Mr Foley, the normal process is that where the parties indicate that there is a term of the underpinning award which has not been met in the new agreement, then 6.4 is the space where that term is identified. The parties then normally indicate that taken as a whole, the agreement provisions provide for benefits which exceed those provided for in the award.

PN19

MR FOLEY: That is our submission, sir.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes. Now, just in terms of understanding that submission, are there any particular clauses of the award that you say have not been met by virtue of this particular agreement? Let me put it to you by way of an example. Sometimes a spread of hours provision set out in an award is more generous from the employee perspective than would be the case in an agreement.

PN21

MR FOLEY: Yes, sir. Well for example the overtime clause in the award does not operate in the employment on the basis that the other terms of the agreement do operate, which we say would satisfy the no disadvantage test.

PN22

THE SENIOR DEPUTY PRESIDENT: I see. So is overtime the only one in that regard?

PN23

MR FOLEY: Just a moment please sir. If I may, Senior Deputy President, Mr McHugh can shed better light on the interaction between those award clauses and the agreement. If I may.

PN24

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN25

MR MCHUGH: Good afternoon, sir. Sir, looking at the agreement clauses there, most of them, as Mr Foley has outlined, have already been addressed. The grievance and discrimination transmission salaries allowances are all addressed in the new EBA. The ordinary hours of work, the hours of work we have actually addressed in the new EBA as well. Overtime as an RFDS is paid as an RFDS allowance which incurs or covers all things like overtime and shift work, the penalties for public holidays et cetera. Annual leave is covered in the new award, new agreement. Simply - - -

PN26

THE SENIOR DEPUTY PRESIDENT: Mr McHugh, I don't want to interrupt you but I am not quite sure I have expressed the question that I am asking as clearly as I might have done. I understand that each of those nominated clauses that are set out in the answer to 6.4, are instances where the award provision is superseded by this agreement. There is no argument in that regard. But what I am looking for is whether or not there are any of those, or indeed any other clause in the award where, if you just looked at that particular award provision it is less than the benefits established or the corresponding benefit established by this agreement.

PN27

MR MCHUGH: To my knowledge sir, I don't believe there is.

PN28

THE SENIOR DEPUTY PRESIDENT: I see. Thank you. Yes, thank you Mr McHugh. Do all of the parties have a copy of the agreement? Mr Devlin and Ms Dabars, I am going to address the questions I have to Mr Foley so please feel free to jump up and indicate whether or not you want to add or detract from anything that Mr Foley says to me. Mr Foley, can I take you to clause 4.3, 4 relates to the application of the award. I just wonder if you might clarify the intention of the parties relative to clause 4.3?

PN29

MR FOLEY: The intention, my instructions are sir, the intentions of 4.3 is that the agreement prevails over the Nurses South Australia Award to the extent of any inconsistency between the two and over any registered or unregistered agreements made between the parties. My understanding is that is an intention to supersede the previous agreement. And upon reading the last - after the last, after the comma on the last line there, my understanding is that it is the intention of that clause that the agreement before the Commission prevails over any preceding agreement that would otherwise bind the ANF.

PN30

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 11.1.1(b) relates to salary packaging.

PN31

Commission has found the salary packaging is a matter that does not preclude certification but references made to the RFDS salary packaging policy.

PN32

Is that policy available in a documented form for the consideration of employees and may it be changed over the life of the agreement?

PN33

MR FOLEY: I will answer the first part of your question first, Senior Deputy President, yes it is available. I have copies here now if you prefer. I am happy to hand that up. Whether or not the RFDS salary packaging policy can be varied over the term of the agreement - just a moment, Senior Deputy President.

PN34

THE SENIOR DEPUTY PRESIDENT: It would appear that the provisions of 11.1.1(b) envisaged the possibility it would change subsequent or consequent upon changes to the tax legislation and regulatory requirements.

PN35

MR FOLEY: My understanding sir, is that should the tax legislation or regulatory requirements thereto change in a manner that renders clause 11.1.1(b) unable to operate in its current form then clause 11.1.1(b) would operate in a manner that would be - just a moment please, Senior Deputy President. Sorry, Senior Deputy President, put simply, if there is a change in the legislation regarding FBT then the RFDS, sorry, packaging policy would change to reflect that. Thank you.

PN36

THE SENIOR DEPUTY PRESIDENT: But if you want to give me a copy you can do so but I am working on the basis that information is readily available to employees?

PN37

MR FOLEY: Yes sir, it is.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes. It is not necessary that you do so.

PN39

MR FOLEY: As you wish, sir.

PN40

THE SENIOR DEPUTY PRESIDENT: Clause 11.5.1 references various policies and laws going to alcohol and non-prescription drugs. Should I understand those policies are readily available to all employees and that they may be changed over the life of the agreement?

PN41

MR FOLEY: Yes they are available, Senior Deputy President.

PN42

THE SENIOR DEPUTY PRESIDENT: 11.5.2 relates to rostering arrangements. It talks of the possibility of a review of rostering arrangements. I am conscious that 11.1.2 provides for an annual salary which constitutes a payment for all hours worked and is in lieu of overtime, penalty rates, leave loading and allowances. That might expand somewhat the answer that Mr McHugh gave me in terms of the award clauses that would be in effect superseded by this particular agreement but should I understand that while 11.5.2 provides for the RFDS to review rostering arrangements, there is no obligation to actually do so?

PN43

MR FOLEY: Sorry sir, could you repeat that question?

PN44

THE SENIOR DEPUTY PRESIDENT: Is there an obligation in 11.5.2 for the RFDS to actually change rostering arrangements which exceed or significantly exceed that average of 38 hours per week over a roster?

PN45

MR FOLEY: My understanding of that clause, sir, is that where the hours exceeded an average of 38 per week over a roster cycle, then the clause obliges the RFDS to review rostering arrangements. My interpretation of that clause is the RFDS will review rostering arrangements on a basis, on either basis indicated in the terms of the clause.

PN46

THE SENIOR DEPUTY PRESIDENT: I see. So there will be an actual change to the rostering?

PN47

MR FOLEY: Yes. Well there will be a review and the intention is to discuss those rostering arrangements with the staff in question.

PN48

THE SENIOR DEPUTY PRESIDENT: I see.
MR FOLEY: But that there would be a change as a consequence of that review consistent in the terms of 11.5.2.

PN49

THE SENIOR DEPUTY PRESIDENT: Thank you. Now 11.6 deals with hours of work. 11.6.1 references an agreed seven day on call roster. 11.6.2 talks about shift hours varying between eight and 12 hours. Now, I must say I am having a little difficulty understanding how a roster then would be structured around a 38 hour week average unless it was the case that there were either substantially elongated or changed non-work days within that period of time, or alternatively unless it is the case that non-work days were banked so as to be taken in a group at the end of a spell of duty in a place such as Port Augusta. Can you tell me how that arrangement works?

PN50

MR FOLEY: Certainly sir. Mr McHugh could shed better light quicker than I on that, if it pleases the Commission.

PN51

MR MCHUGH: Sir, the way the roster configuration works is that the duration of the shifts, we have an 8, a 10, 11 and 12 hour shifts starting at different times during the day. That a roster is configured over a six or seven week period and the rosters that we work are on call rosters so they are not that you are physically at the hanger every day for every hour that you are on that roster. We then look at the rotation of the roster and average the hours out over the week. So it may be in one week you work four days and have three off and the second week you may work two days and have more off. So over the period of the roster the (12.41.04) in saying that there is additional days off granted to the staff and it is worked on an average basis across the period. So there may be 40 hours in one week, there may be 20 hours in another, there may be 55 hours in another.

PN52

THE SENIOR DEPUTY PRESIDENT: And are those days or hours off commonly banked so as to be taken in a collective group at the end of a period of duty?

PN53

MR MCHUGH: Yes they are. So there is usually two, three or four days off at the end of a block.

PN54

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Foley, clause 11.8 deals with annual leave. It references the RFDS annual leave policy. 11.9 references the RFDS policy in relation to personal leave. 11.11 deals with the RFDS long service leave policy. 11.12 deals with parental leave policy, and 11.13 deals with presumably a uniform policy. Once again, are all those policies documented? Are they readily available to employees and might they be changed over the life of the agreement?

PN55

MR FOLEY: Just one moment sir. Sir, the copies of those policies are readily available and the policies may be changed but by agreement only.

PN56

THE SENIOR DEPUTY PRESIDENT: Thank you. And clause 11.15 references a proposal to develop occupational health and safety policies. Is there a timeframe within which that might occur or is it simply over the life of the agreement?
MR FOLEY: Sir, I am advised that the development of those OH&S policies is ongoing throughout the .....

PN57

THE SENIOR DEPUTY PRESIDENT: Clause 11.17, and in particular 11.17.1 indicates that prior to an offer of employment, the RFDS will arrange a medical examination for the prospective employee. Now, should I take it that I should read that particular provision in the context of the rest of that clause so that the primary purpose of the clause is to indicate that information received through the pre employment medical examination will be treated on a confidential basis between the employer and the actual employee?

PN58

MR FOLEY: Yes sir, that is correct.

PN59

THE SENIOR DEPUTY PRESIDENT: You see if we are just dealing with prospective employees there might be an issue as to how I can regard that as a clause pertaining to the employment relationship.

PN60

MR FOLEY: Yes sir. It is our submission sir that that clause pertains to the requisite relationship and is ancillary there to. It would be our submission sir, that the need to provide a reasonably safe workplace in terms of the agreement are such that in the nature of the employment concerned, in aero medical services in particular and medical professionals, that a pre employment medical examination in the terms of 11.7 do pertain to the relationship.

PN61

THE SENIOR DEPUTY PRESIDENT: Yes. Do I overcome that problem if I read the clause as a whole so that it is effectively establishing that obligation of confidentiality with respect to existing employees?

PN62

MR FOLEY: Indeed sir, yes.

PN63

THE SENIOR DEPUTY PRESIDENT: And the superannuation policy referenced in 11.18 is in the same category as the other policies?

PN64

MR FOLEY: Yes sir. That is correct.

PN65

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you Mr Foley.

PN66

MR FOLEY: Thank you sir.

PN67

THE SENIOR DEPUTY PRESIDENT: Mr Devlin, can I take it you are in agreement with Mr Foley?

PN68

MR DEVLIN: Yes sir.

PN69

THE SENIOR DEPUTY PRESIDENT: And Ms Dabars, you are in agreement with that information?

PN70

MS DABARS: Yes sir.

PN71

THE SENIOR DEPUTY PRESIDENT: On the basis of the information provided to me I am satisfied that the agreement meets the requirements of section 170LI of the Act. That it was reached through a process consistent with section 170LK of the Act. In that regard I have noted that retained on the Commission's file is a copy of the employer's notice of intention. I am also satisfied that the agreement itself meets the requirements set out in sections 170LT and LU of the Act necessary for certification. And accordingly will be certified with effect from today. A certificate to that effect will be forwarded out to the parties within the next few days.

PN72

That certificate will detail the various clauses about which I sought clarification but it will not incorporate the answers provided to me by the parties as those will be recorded on the transcript of these proceedings. On the basis of the employer position relative to the ANFs application to be named as a party bound by the agreement and the information contained in the ANF correspondence to the Commission in that regard, I am satisfied that the ANF meet the requirements necessary so as to be bound under section 170M(3) of the Act and I will issue an order to that effect. I congratulate the parties on reaching this agreement and hope that it operates to the benefit of the employer and its employees. I will adjourn the matter accordingly.

<ADJOURNED INDEFINITELY [12.48PM]