C2005/6156, Transcript of Proceedings [2006] AIRCTrans 19 (5 January 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13884-1

COMMISSIONER CRIBB

C2005/6156 C2005/6157

AUSTRALIAN NURSING FEDERATION-TASMANIAN BRANCH
AND
HEALTH SERVICES UNION OF AUSTRALIA, TASMANIA NO. 1 BRANCH MINISTER ADMINISTERING THE STATE SERVICE ACT 2000
s.111(1)(f) - Appln to revoke award etc
(C2005/6157)

AUSTRALIAN NURSING FEDERATION-TASMANIAN BRANCH
AND
HEALTH SERVICES UNION OF AUSTRALIA, TASMANIA NO. 1 BRANCH MINISTER ADMINISTERING THE STATE SERVICE ACT 2000
s.111(1)(f) - Appln to revoke award etc
(C2005/6156)

MELBOURNE

10.26AM, THURSDAY, 22 DECEMBER 2005

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

PN1

MR P GARDNER: I seek leave to appear for the applicant, the Australian Nursing Federation. I appear with MS N ELLIS, who's in Hobart.

PN2

MR T KLEYN: I appear for the Health Services Union of Australia. I might add now that I have no objection to Mr Gardner appearing.

PN3

THE COMMISSIONER: I was actually going to ask you that question this time,
Mr Kleyn. Thank you.

PN4

MR P BAKER: I appear on behalf of the Minister Administer State Service Act and with me this morning is MR J FITTON.

PN5

THE COMMISSIONER: Mr Gardner.

PN6

MR GARDNER: If the Commission pleases, these are two applications to set aside the 2001 and the 2004 Nurses (Tasmanian Public Sector) Enterprise Agreements. Applications have been filed in the Commission dated
8 December 2005 by the application. They are made under section 111(1)(f) of the Act, expressed to revoke or set aside the certification of the two agreements. We emphasis and distinguish between the certification of the agreement and the agreement itself. Draft orders have been filed in each matter and it's proposed that the setting aside of the relevant agreements be - have effect from 31 December this year. We take the grounds as read, and I don't repeat them.

PN7

In essence it's submitted that the Commission in certifying each of those agreements had no jurisdiction to do so for the very simple reason that the employer concerned was not a constitutional corporation which was a condition for certification under section 170LJ of the Act. I want to draw the Commission's attention and simply rely on a couple of passages from Full Benches of the Commission in order to satisfy you that the course we propose is appropriate. The first is a Full Bench decision of 27 May 1997 in Western Australian Government Railways Commission matter print P0976. To quote from paragraph 7 where the Full Bench indicate:

PN8

Although it is not the Commission's function to declare the law, it is the Commission's responsibility to ...(reads)... Commission will concentrate on matters of merit and leave the legal issue for resolution elsewhere

PN9

In these circumstances, it's submitted that merely because the parties or a party could go to the court and seek the termination of the agreement for want of jurisdiction, it's submitted that the appropriate course is for the Commission, now it has an application before it, to address and deal with the matter in the way proposed by that Full Bench. The other decision is a decision of a Full Bench of
4 June 2003 in relation to the National Labour and Engineering Enterprise Agreement comprising Justice Munro, Senior Deputy Drake and
Commissioner Raffaelli. They indicate at paragraph 35, I quote:

PN10

We have no doubt that it is within the Commission's power in relation to such an application to set aside the certification of an agreement made under Part VIB of the Act.

PN11

They then set out 111(1)(f):

PN12

Subject to an application being competently made, under paragraph 111(1)(f), the power confers a discretion ...(reads)... that task effectively reduces to showing that the requirements for certification of the agreement did not exist.

PN13

It's precisely that proposition to which we direct ourselves. A jurisdictional prerequisite for the certification under the Act was just simply not present in the circumstances. It was an error made by the parties, it was made by the Commission but it was not a slip. It was not a slip because the parties and the Commission directed their mind to the certification of the agreement under an entirely inappropriate provision of the Act. It's submitted that it's inappropriate to apply under section 170MH, that's the termination of an agreement, in circumstances where in truth, the certification of the agreement was attended with significant problems. The Commission and the parties embarked on a process that was simply not available to them, as is clear from a consideration of section 170LI and 170LH. They require there to be a constitutional corporation. I indicate that section 37 of the State Services Act 2000 Tasmania provides that the appointment of the relevant employees is to be made:

PN14

by the Minister on behalf of the Crown

PN15

I think it's accepted, there's no issue whatsoever that there is no mechanism by which the Crown in this context has corporate status of the relevant kind. So it's submitted that it's plain from the certification material and indeed the very orders made certifying the agreements that this wasn't a slip. This was a deliberate, conscious decision to certify simply under the wrong provision of the Act. Can I draw the Commission's attention again to a further decision of the Full Bench of
8 September 1999 comprising the President, Vice President Ross and Commissioner Lewin in a matter involving an application for the setting aside of the certification of an AMIEU agreement. At paragraph 14 the Full Bench indicates that there is:

PN16

Distinction of substance between a power to set aside the act of certifying an agreement and a power to set aside the agreement itself. Whilst the exercise of both powers has the same effect in that the certification no longer operates, the facts here demonstrate the difference between the two powers.

PN17

I interpose, this was an appeal case:

PN18

In the case before Justice Boulton, it was the process by which the agreement was made including the Commission ...(reads)... the Commission to certify the Agreement and not at the termination of the Agreement made by the parties.

PN19

That's precisely the territory that we're in, in making this application. So in those circumstances Commissioner, it's submitted that the Commission has power - that not only does the Commission have power but it's in the public interest that the Commission's record be, in effect corrected. We ascertain that there is no impediment to the Commission taking the steps sought and the draft order is provided with an operative date of 31 December 2005. On one view the operative date should be really from today in circumstances where we're submitting that really the certification is a nullity.

PN20

It's submitted that in the circumstances of a package such as this where we're setting aside an award, terminating two older agreements and submitting that these awards should be - the certification should be set aside. A common date is more appropriate simply for the purposes of clarity of understanding as to what relevant industrial instruments apply. The parties, and generally the employees concerned, have all understood that these two agreements operate and regulate their affairs. It's submitted that they don't and haven't as a matter of law but nonetheless, as a package it's submitted that 31 December date is the appropriate course. Unless the Commissioner has any questions, those are our submissions.

PN21

THE COMMISSIONER: Thank you Mr Gardner. Mr Kleyn.

PN22

MR KLEYN: Commissioner, I'd just like to say that we support the applications made and also ask that you issue the orders as set out in the ANFs drafts. Thank you.

PN23

THE COMMISSIONER: Thank you Mr Kleyn. Mr Baker.

PN24

MR BAKER: Commissioner, we support the - again we support the termination of the agreement. I should point out that we do not necessarily agree with the submission that has been made in relation to the agreement - the previous 2001 and 2004 agreements being invalid. But as nothing hinges on that matter, we will not pursue the question today.

PN25

THE COMMISSIONER: Thank you Mr Baker. The Commission has before it, applications by the Australian Nursing Federation, Tasmania branch to set aside the certification of the Nurses (Tasmanian Public Sector) Enterprise Agreement 2001 and secondly the Nurses (Tasmanian Public Sector) Enterprise Agreement 2004. The application is - both applications are supported by the parties. Having heard the submissions put before the Commission this morning, I am prepared to grant each of the union's applications to set aside the two agreements. The - sorry, I'll start again, to set aside the certification. I did get that right. The order shall be in the terms of the draft order that has been submitted to the Commission and circulated amongst the parties. The order shall come into force from the date of 31 December 2005 with respect to each of the applications. Both these matters are now adjourned.

<ADJOURNED INDEFINITELY [10.39AM]