C2006/2803, Transcript of Proceedings [2006] AIRCTrans 1112 (2 October 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15797-1

COMMISSIONER CRIBB

C2006/2803

APPLICATION BY AUSTRALIAN NURSING FEDERATION
s.553(1) - Appl’n for variation of award (maintain min. safety net entitlements)
(C2006/2803)

MELBOURNE

2.32PM, WEDNESDAY, 20 SEPTEMBER 2006

PN1

MR P GILBERT: I appear for the Australian Nursing Federation.

PN2

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

PN3

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

PN4

MR GILBERT: Thank you, Commissioner. If I could first proceed by providing evidence of compliance with the order for substituted service. If I could just ask that that be marked as an exhibit.

PN5

THE COMMISSIONER: Thank you.

EXHIBIT #A1 BUNDLE OF DOCUMENTATION

PN6

MR GILBERT: Thank you, Commissioner. We would submit that that is evidence that service was effected. Attached within that bundle of documents, Commissioner, marked as A1 is a draft order provided by the ANF to the other parties. If I could just bring to your attention an amendment that the ANF seeks to make to evidence. If I could just go off the record for one second, Commissioner.

PN7

THE COMMISSIONER: Thank you.

<OFF THE RECORD

PN8

MR GILBERT: Attached within the bundle marked A1 is a draft order of the ANF provided to the parties. There is an error in that, in that it refers to clause 16(a) of the Award transitional wage rates for Victoria. The ANF does not seek any variation to that provision and to the extent that the draft order is set aside we’d seek that that be deleted and renumbered accordingly. I’d also bring to your attention, Commissioner, that the draft order indicates an operative date of 14 July 2006. The ANF would seek to amend that to be an operative date from the first pay period to commence on or after 20 September 2006. If I could also provide to and rely upon the submissions of the ANF that the ANF has circulated to the parties, written submissions.

PN9

I believe they are exhaustive in covering the areas that the Commission needs to be satisfied of in order to grant the order and the ANF seeks to rely on those and the submissions made in the previous matter in terms of the granting of the order that we seek from the Commission today. We’d also provide for the file a copy of the Australian Bureau of Statistics figures that the ANF relied on in order to make the CPI adjustments to these allowances. If the Commission pleases.

PN10

THE COMMISSIONER: Thank you, Mr Gilbert. Mr Eberhard?

PN11

MR EBERHARD: Commissioner, subject to the changes being made to the order as proposed by the ANF in this matter VECCI would not be opposing the application. If the Commission pleases.

PN12

THE COMMISSIONER: Thank you, Mr Eberhard. This matter is an application by the Australian Nursing Federation to vary the Nurses (Private Pathology Victoria) Award 2004 pursuant to section 553(1) of the Workplace Relations Act 1996. The purpose of the application is to increase expense related allowances by movements in the Consumer Price Index in order to maintain minimum safety net entitlements. With respect to this award the expense related allowances sought to be increased are vehicle allowance and meal allowance. The application is not opposed by the other parties. In considering this application the Commission is required to be satisfied regarding a number of matters. In reaching its conclusions regarding this matter the Commission has taken into account the submissions of the parties.

PN13

Section 553(2) requires the Commission to take such steps as it thinks appropriate to ensure that each employer, employee and organisation bound by the Award and any other interested parties are made aware of the application. On the basis of the notification by the union to all of the parties contained in exhibit A1 I am satisfied that employers, employees and organisations bound by the Award have been made aware of the application. Further, the Commission is required to be satisfied with respect to the requirements of section 553(4). With respect to section 553(4)(a) on the basis of the submissions put before the Commission this afternoon the Commission is satisfied that the variation is essential to the maintenance of minimum safety net entitlements under the Award as allowances are an intrinsic part of the safety net that is provided by the Award.

PN14

In addition, the application seeks to vary reimbursement allowances which do not advantage employees, but rather restore to employees money which has been expended as a direct result of their employment by the employer and which have been agreed to have been incurred by the employee. In terms of section 553(4)(b) the Commission has to be satisfied that a number of conditions have been met. The first is (4)(b)(i) which requires that the Award as varied would not be inconsistent with decisions of the AFPC. On the basis of the submissions before me I am satisfied that this requirement has been met. Allowances are not included in the powers of the Australian Fair Pay Commission as set out in sections 21, 22, 23 and 24 of the Act.

PN15

Further, monetary allowances for employment related expenses are an allowable award matter pursuant to section 513(1)(h)(i) of the Act. With respect to subsection (4)(b)(ii) the Commission is satisfied that the Award as varied would provide only minimum safety net entitlements as the application seeks to maintain the reimbursement at a level which compensates an employee for the expense incurred. Subsection (4)(b)(iii), the Commission is satisfied that this condition has been met. This is on the basis that these allowances are allowable award matters and I am of the view that this variation would not be inconsistent with any of the outcomes in the future of the Award simplification and the Award rationalisation process.

PN16

Subsection (4)(b)(iv) requires that the variation would not act as a disincentive to agreement making at the workplace. On the basis of the submissions of the parties I am satisfied that this condition has been met. Nurses in the private pathology sector are currently covered by enterprise agreements and the granting of the union’s application would not be a disincentive to agreement making at the workplace level. Subsection (4)(b)(v), the Commission is satisfied that there are no other requirements prescribed by the regulations about which I must be satisfied therefore this condition has been met. Accordingly, the Commission is satisfied that the requirements of section 553 have been met. The union’s application is therefore granted.

PN17

The Award shall be varied in the terms of the draft order which was amended by the union and which is contained in exhibit A1. It is not opposed by the other parties. The order shall come into force from the first pay period commencing on or after today’s date which is 20 September 2006 and shall remain in force for a period of six months. The Commission stands adjourned.

<ADJOURNED ACCORDINGLY [2.42PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 BUNDLE OF DOCUMENTATION PN5