AG2006/4147, Transcript of Proceedings [2006] AIRCTrans 617 (11 April 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14733-1

COMMISSIONER CRIBB

AG2006/4147

APPLICATION BY GRIBBLES GROUP LTD & HEALTH SERVICES UNION OF AUSTRALIA-VICTORIA NO 3 BRANCH
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2006/4147)

MELBOURNE

12.45PM, FRIDAY, 31 MARCH 2006

Hearing continuing

PN1

MS J FRAUMANO: I seek leave to appear for Gribbles Group Ltd.

PN2

MR LANGMEAD: I seek leave to appear for the Health Services Union of Australia.

PN3

DR R KELLY: I seek leave to intervene. I am the executive officer of the Medical Scientists Association of Victoria which is a union registered under the Trade Union Act 1958 in Victoria. We have members in Gribbles Pathology employed as technicians and if the Commission wishes to hear further from me or take further submissions on why I should be allowed to intervene under section 43(1) of the Workplace Relations Act 1996, if the Commission pleases, I am not sure what section of the section legislation I should be seeking leave to appear under. This matter will be determined under the Workplace Relations Act. So I’m in your hands about which way we see it - - -

PN4

MR LANGMEAD: It does go under the old Act.

PN5

DR KELLY: Yes.

PN6

THE COMMISSIONER: Thank you, Dr Kelly. Mr Langmead or Ms Fraumano, would you like to make submissions regarding Dr Kelly seeking leave to intervene?

PN7

MR LANGMEAD: Perhaps if it’s drawn, our applications for leave to appear before we do that.

PN8

THE COMMISSIONER: Sorry, thank you. Thank you, Mr Langmead. Is there any objection, Dr Kelly, to the appearance of Ms Fraumano - - -

PN9

DR KELLY: I mean, as an intervener I don’t think I have any rights.

PN10

THE COMMISSIONER: That’s what I thought, but I’ll just double check. Leave is granted to Ms Fraumano and Mr Langmead. Right, Mr Langmead or
Ms Fraumano, or the other way around. Would either of you like to make submissions regarding Dr Kelly seeking to intervene in this matter?

PN11

MR LANGMEAD: Yes. Ms Commissioner, can I draw your attention to section 43(2)(b).

PN12

THE COMMISSIONER: Yes, Mr Langmead.

PN13

MR LANGMEAD: That prohibits the Commission from granting leave to any other organisation other than the applicant organisation. Now, I know that the MSAV is not an organisation for the purposes of the Act and an organisation is defined as one that is registered.

PN14

THE COMMISSIONER: Do you know whether the MSAV is registered?

PN15

MR LANGMEAD: I know that it is not registered, Commissioner.

PN16

THE COMMISSIONER: Okay.

PN17

MR LANGMEAD: So it isn’t an organisation which is prohibited under section 43(2)(b). Nevertheless, the legislative intent was to exclude organisations, we would submit, in the broad sense of that word from being permitted to intervene on an application for certification unless they are the organisation which is a party to the agreement. So we would say that you should have regard to that intent when exercising your discretion as to whether or not you should allow leave for anybody else to intervene. Secondly, Commissioner, it’s alleged that the MSAV has members in Gribbles.

PN18

I don’t know whether Dr Kelly said that they were employed as technicians or not, but I do say on the assumption that that’s what she meant. Then we’d say firstly that we should be provided with evidence that they firstly are able to be members of the MSAV and that would require tendering of the rules of the MSAV, secondly that they are members of the MSAV and of course that they’re employees of Gribbles Pathology. You should not accept an assertion in the very broad terms that the MSAV has an interest in this matter. Commissioner, it’s my submission that you must be satisfied that an applicant for intervention does have a sufficient material interest in the proceedings if they ought to be heard.

PN19

It isn’t sufficient for somebody to say well, I’ve got an interest. They need to demonstrate that interest and on top of that demonstrate it is desirable that they be heard. Commissioner, you would probably know that the MSAV is a parallel organisation to the HSUA number 4 branch. Medical laboratory technicians are assigned by the rules of the HSUA to the Victoria number 3 branch and I can provide a copy of the rules of the two branches to the Commission.

PN20

THE COMMISSIONER: Thank you.

PN21

MR LANGMEAD: Commissioner, you will see that under 49(d) it sets out what the Victoria number 3 branch shall consist of and the second category of employee there is medical laboratory technician. So especially in light of that, Commissioner, we do press that the MSAV demonstrate that it has both eligibility and membership of the relevant persons.

PN22

THE COMMISSIONER: Mr Langmead, is that pursuant to section 43(2)(a) of the Act?

PN23

MR LANGMEAD: I don’t understand that to be the nature of the application, Commissioner.

PN24

THE COMMISSIONER: Maybe I need to check.

PN25

MR LANGMEAD: I think my friend said that it was 43(1) that she was applying under. If it were said to be 43(2)(a) then there’d be further procedural or evidentiary hurdles for Dr Kelly.

PN26

THE COMMISSIONER: The reason I asked the question was I was just in reading the preamble to 43(2), because I apprehend this application will fit within that.

PN27

MR LANGMEAD: Yes it is, Commissioner. Yes. But again, well on the pre-empt then it might be said the MSAV is not an organisation so it wouldn’t appear to be caught by 43(2)(a).

PN28

THE COMMISSIONER: Thank you, Mr Langmead. Ms Fraumano, did you wish to add anything to Mr Langmead’s submissions?

PN29

MS FRAUMANO: Commissioner, just to make comment that this agreement was actually negotiated with HSUA to a number 3 branch and Ms Kelly wasn’t involved in the negotiations. Nothing further to add, Commissioner.

PN30

THE COMMISSIONER: Thank you, Ms Fraumano. Dr Kelly?

PN31

DR KELLY: Commissioner, the application is made under 43(1), leave to intervene, which says that:

PN32

Where the Commission is of the opinion that an organisation, a person including a minister or a body should be heard in a matter before the Commission, the Commission may grant leave to the organisation, person or body to intervene.

PN33

And I’m seeking leave to intervene as the representative of a body, not of an organisation. Mr Langmead’s quite correct in saying that an organisation is defined in the definitions of the Act to be an organisation, it means an organisation registered under this Act. And I refer you to that definition in section 4(1):

PN34

Organisation means an organisation registered under this Act.

PN35

So certainly 43(2)(b) says that you must not grant leave to intervene in the matter to an organisation of employees other than the one that is proposed to be bound, but the Medical Scientists Association of Victoria is not an organisation of employees under the Workplace Relations Act 1996. And if Mr Langmead’s submission was correct, that there was an intention to exclude other bodies which are representative employees, that’s what the legislation, in my submission, would say. That is not what the legislation says. The legislation says quite clearly that you must not grant leave to intervene to another organisation of employees. I am not seeking leave to intervene as another organisation of employees.

PN36

There’s no evidence here about parliament’s intention when it wrote the legalisation and indeed if parliament had intended that, that’s what parliament would have done. It didn’t. So you have the capacity to admit the Medical Scientists Association of Victoria as an intervener.

PN37

THE COMMISSIONER: Dr Kelly, could you assist me. The difficulty I have is where section 43(1) sits with 43(2).

PN38

DR KELLY: Well, I think if I could be as bold as to try and suggest what they mean, Commissioner. It doesn’t say “or”, so 43(1) is there as a general right to intervene. So my interpretation of that would be that another organisation could be granted leave generally speaking in a matter before the Commission. So you might have a section 99 or an application to vary an award, for example, to which more than one organisation is party and you would have the capacity to admit another organisation as in intervener in the matter. For example, maybe if they claimed representation of membership in the particular area.

PN39

43(2) goes specifically to the application for certification and it doesn’t override 43(1), but it puts additional matters in there. So it’s such to say that if one organisation has got an agreement before the Commission for certification the second organisation couldn’t intervene. So that’s how I see the two sections of the Act intervening. There’s a general power to allow intervention in 43(1). 43(2), when you read it, says only that you must not grant leave to another organisation. It doesn’t say you must not grant leave to any other person, body, minister or whoever might come before you.

PN40

THE COMMISSIONER: And the basis on which you’re making the application is as representative of a body and not an organisation?

PN41

DR KELLY: That’s correct.

PN42

THE COMMISSIONER: Because I must actually agree with, I think, from what you’ve just said in essence you’re agreeing with Mr Langmead. The intention of 43(2)(b) in terms of intervention rights was to prevent intervention by another competing “organisation” in certification of an agreement.

PN43

DR KELLY: That’s correct.

PN44

THE COMMISSIONER: To me that’s pretty straight up and pretty clear. But your argument, Dr Kelly, is that you’re not caught by that because you’re not representing an organisation. You’re actually representing a body and that that then allows you under 43(1) to intervene and to be heard.

PN45

DR KELLY: That’s correct, Commissioner. And in law the Medical Scientist Association is separately constituted and it is registered under the Trade Union Act 1958 Victoria. It is a separate body from the HSUA number 4 branch. It is not a power or a body. We don’t have all of the rules here, but the rules of the HSUA state that the number 4 branch is composed of three component associations. That’s the Medical Scientists Association, the Victoria Psychologists Association and the Association of Hospital Pharmacists, each of which is a component that retains their own identity, if you like, within the organisation and you can be a member of the medical Scientists Association and not a member of the HSUA 4.

PN46

Also the membership sits with the Medical Scientists Association and membership of the HSUA 4 is by a separate application. So it is a separate organisation with its own legal identity registered in Victoria and is not a part of HSUA or it is a component of HSUA for it operates independently. It takes out all sorts of, enters into contracts, it sues and it can be sued on its own behalf as an organisation. Now, I’m at a disadvantage, Commissioner, because I didn’t find that this matter was being listed until this morning when I was on my way, I went straight out to Monash University and back again.

PN47

So I don’t have the registered rules of the Medical Scientists Association. That is rules that are registered under the Trade Union Act 1958. So I mean, I’m in your hands. If you want to adjourn and I can get the rules, the rules will say that somebody who has a science degree and is employed in a wide range of areas, including pathology, is eligible to be a member of the Medical Scientists Association. Now, I’m in your hands about whether you want me to actually hand you those rules so that you can see the interest that we have and if Mr Langmead wants evidence of rules and evidence of membership, then we can certainly give him evidence.

PN48

Could I say, Commissioner, that Gribbles Pathology have already acknowledged the Medical Scientists Association Victoria has an interest in this matter. When the ballot papers were circulated, they were circulated with a notice to employees that the Medical Scientists Association would be told, advised when the ballot was going to be counted and would be present at the ballot. That was circulated to employees within Gribbles Pathology. We have an interest and I know that probably not appropriate to make submissions from the bar table, but with leave of my friend I can say that I’ve been contacted by numerous technicians about this matter.

PN49

MR LANGMEAD: We don’t accept that assertion.

PN50

DR KELLY: Well, I could bring evidence and witness evidence if you wish. But as I said, given that I only just found out this morning that this matter was listed I am at a disadvantage.

PN51

THE COMMISSIONER: Thank you, Dr Kelly. Mr Langmead?

PN52

MR LANGMEAD: Commissioner, you shouldn’t forget that Ms Kelly, prior to this during the conferences in proceedings here, told the Commission that she appeared for the HSUA. She said that. Now, this application for intervention is a subterfuge to bypass 43(2)(b). Now, I said what I said about 43(2)(b). I pointed out to the Commission that it didn’t apply. What I did ask the Commission to do is have regard to its legislative intent and that intention should be reflected in your exercise of your discretion under 43(1), which is the in a circumstance like we have today where Ms Kelly’s come along and said that she represented the HSUA, when she finds that she can no longer sustain that position she tells you that she’s representing the MSAV.

PN53

She isn’t able to demonstrate that MSAV has any ability to represent any of these people. She says she’s got a whole lot of witnesses that she may be able to call who may or may not be able to contribute anything that’s useful. But in my submission the mere allegation that the MSAV has members who are employed by Gribbles as medical laboratory technicians, that mere allegation doesn’t carry with it sufficient to identify an interest in this matter. It is a sufficient interest in this matter, and the Commission will be familiar with the Customs Officer’s case and the ATPOA case both in the High Court in relation to whether the Commission should grant intervention, and those cases make it pretty clear that you’ve got to have a genuine proper interest.

PN54

And just having members isn’t, even if it is true, isn’t enough to generate a sufficient interest to be granted intervention. There must be more. And as I say, having regard to the circumstances in which this matter has evolved when it really is an attempt to bypass 43(2)(b) the Commission should, as a matter of discretion, find that there isn’t a sufficient interest and that it would not be proper to allow another association to come before you and interfere in the certification proceedings.

PN55

THE COMMISSIONER: Mr Langmead, when we were in conference prior to commencing the formal proceeding in this matter there was discussion between the parties about representation. What the Commission’s actually being asked to do now is to make a decision regarding intervention and the ability to be heard. That to me is a different situation. Hypothetically if it was granted it would not place Dr Kelly and the MSAV in the same situation as was discussed when we were in conference. To me intervention has a different character to that of appearing straight up, if I can put it colloquially. It provides for the ability for a party to be heard, full stop.

PN56

MR LANGMEAD: A person with a sufficient interest to be heard. Yes, Commissioner.

PN57

THE COMMISSIONER: Yes. Now, in terms of procedural fairness, I mean I was completely unaware that this matter before me would be other than a “normal”, if I can put that, certification. In terms of procedural fairness I have no difficulty with Dr Kelly being asked to satisfy the Commission that there is that interest before the Commission is in a position to make a decision about intervention. And I’ve had a very similar situation occur in another part of this industry before I went on leave. So I’m getting good at applications for intervention by non-registered organisations, unfortunately.

PN58

So the bottom line is that the Commission has before it an application for intervention under 43(1). The Commission, I agree with you, does need to be satisfied of the interest. I am prepared to allow Dr Kelly some time to do that and then hear submissions from all of the parties and then make a decision about the application for intervention.

PN59

MR LANGMEAD: Commissioner, I suspect that you might have misunderstood what I was saying about the representation point and the intervention.

PN60

THE COMMISSIONER: I may well have, Mr Langmead, and I apologise.

PN61

MR LANGMEAD: Maybe not. I’m sure it would be my fault for not making myself sufficiently clear, Commissioner.

PN62

THE COMMISSIONER: No, I'll put it under jetlag.

PN63

MR LANGMEAD: But what I was attempting to say was that you can have regard to the entire circumstances of how this application for intervention came about and it came about because it became obvious to Ms Kelly that she could no longer sustain the position that she represented the HSUA. Now, what we say about that is that, particularly when you have regard to what 43(2)(b) says, when somebody is seeking to escape the scriptures of whatever the legislation or the rules of the organisation, being HSUA, you should have regard to that when it comes to the point of exercising your discretion. So it is no more than that.

PN64

The MSAV are only here because they couldn’t get their foot in the other by some other means and all of a sudden you find that they’ve switched hats. And unfortunately the hat they’re currently wearing didn’t have the rules stuffed into the headband. But that’s the situation, Commissioner, and you should have regard to that when you consider how you exercise your discretion.

PN65

THE COMMISSIONER: Absolutely no difficulty with that submission at all,
Mr Langmead. I haven’t actually got to the decision making point.

PN66

MR LANGMEAD: I understand that, Commissioner. Yes. You’re saying that you propose to allow Ms Kelly the opportunity to get whatever documentation she needs to get to you.

PN67

THE COMMISSIONER: To satisfy the Commission that she has an interest.
Dr Kelly has, in terms of the body that she represents which is the MSAV, has a valid interest in this matter and once the Commission is armed and obviously all of the parties is, once we’re all armed with that material it’s only at that point that the Commission can actually make a proper decision about intervention, unfortunately, and obviously would take into account the submissions that you have made about whether the Commission should exercise its discretion at that point. But that point’s not now. I think that’s all I’m saying.

PN68

MR LANGMEAD: I understand, Commissioner. Yes.

PN69

THE COMMISSIONER: Sorry. It’s my fault, Mr Langmead.

PN70

MR LANGMEAD: I did understand that was your position, Commissioner.

PN71

THE COMMISSIONER: I think I’m still over the Indian Ocean somehow.

PN72

MR LANGMEAD: Half your luck.

PN73

THE COMMISSIONER: I’m not sure. It doesn’t feel like that at the moment, Mr Langmead. Dr Kelly, in light of the dialogue that Mr Langmead and I have had, how long would you need in order to provide the Commission with the rules of MSAV, the evidence that you’re being asked to represent them and submissions as to the nature of the interest that you have so that the Commission can be fully appraised before making a decision about whether to exercise discretion or not?

PN74

DR KELLY: Commissioner, I probably need until Tuesday because of the people that are members actually work shift work, night shifts. So I couldn’t do it today for certain. Monday would be problematic but possible in terms of getting in touch with people because it’s Friday and that’s the problem. We’ve got people on seven day rosters at Gribbles. But I mean Monday afternoon possibly, Tuesday they should be able.

PN75

THE COMMISSIONER: Definitively by close of business on Tuesday?

PN76

DR KELLY: Yes.

PN77

THE COMMISSIONER: Okay, thank you. Mr Langmead, what does that timing look like and would you be in a position to, I need to allow procedural fairness for, obviously, your end of the bar table as well. If that material is furnished to you and Ms Fraumano by close of business on Tuesday do you wish some time to digest that?

PN78

MR LANGMEAD: Not having seen it I don’t know, Commissioner.

PN79

THE COMMISSIONER: May I be bold enough to assume you will. And I’m not seeking to delay this. My diary, unfortunately, is not empty, unfortunately, but I’m just trying to make sure that every party is catered for appropriately.

PN80

MR LANGMEAD: I understand there may be a possibility of Thursday and Friday while you’re opening up your diary.

PN81

THE COMMISSIONER: Yes, that is correct. Your intelligence is very good. The question is have I already done scandalous things with some of that time? The answer’s yes. But maybe you might need to just have a quick discussion with Ms Fraumano. I think the proposal is that by close of business on Tuesday,
4 April the material will be available. So, Mr Langmead, which week are you talking about? The time that’s most freest? There were two days in the subsequent week. Were you actually referring to Thursday the 6th?

PN82

MR LANGMEAD: I was, Commissioner.

PN83

THE COMMISSIONER: You said the 10th and the 11th, unless I misunderstood you.

PN84

MR LANGMEAD: I’m pretty sure I wouldn’t have said 10th and 11th because, whilst my intelligence has got something to do with that as well, no. I was referring to the 6th and 7th, Commissioner.

PN85

THE COMMISSIONER: Because the 7th was never allocated for the matter that you and I are discussing. It was only ever the 6th and it was the 11th and half of the 12th and all of that’s been vacated. That’s the short answer.

PN86

MR LANGMEAD: Yes.

PN87

THE COMMISSIONER: Yes. So you’re right. The compliment was justified.

PN88

MS FRAUMANO: Commissioner, I have a problem with the 6th which I’m in Sydney.

PN89

THE COMMISSIONER: I know it’s warmer there, Ms Fraumano. You seem to enjoy going there.

PN90

MR LANGMEAD: As to the following week, Commissioner, and I have a difficulty on the 12th in particular.

PN91

THE COMMISSIONER: All right. Can I make a suggestion? May we just go off the record to do the programming? I don’t think history needs to hear us muttering about dates. Is that okay everybody?

<OFF THE RECORD

PN92

THE COMMISSIONER: Following discussions with the parties regarding the programming of this matter in order to conclude it there’s been agreement that this matter will continue at 9.30 on Tuesday 11 April 2006. It’s also been agreed that by close of business on Tuesday 4 April Dr Kelly, on behalf of MSAV, will provide documentation in support of her contention that the MSAV has an interest in this matter in support of the application to intervene. Dr Kelly?

PN93

DR KELLY: Commissioner, it just occurred to me there may be some sensitivities around individuals identifying themselves as members. I am prepared to obviously get statutory declarations or whatever is necessary from those individuals and provide them to you, but it may be a problem for them identifying themselves to the company or the representatives of the company. So I’m just mindful, I’m just thinking about what the process might be in terms of our members and their own sensitivities.

PN94

THE COMMISSIONER: Fine.

PN95

DR KELLY: It just occurred to be now and I apologise that I didn’t raise it earlier.

PN96

THE COMMISSIONER: No, that’s okay. I need to take advice from
Mr Langmead and Ms Fraumano on that one. Do you want a moment to confer?

PN97

MR LANGMEAD: No. It seems to me, Commissioner, that until we’ve seen the content of them we’re not in a position to know whether it’s the sort of evidence that we want to challenge by way of cross examination or calling evidence to the contrary or not.

PN98

THE COMMISSIONER: Okay.

PN99

MR LANGMEAD: I think I’d have to reserve the union’s position at this stage.

PN100

THE COMMISSIONER: Right, okay.

PN101

MR LANGMEAD: But I guess to accommodate that potential, if people do say they have an issue then as a temporary measure pending the resolution of that question if we could be provided with documents indicating what the substance of what they’re saying without their identity being disclosed at that stage.

PN102

THE COMMISSIONER: Mr Langmead, that sounds like a really sensible way to approach it. Thank you for that. Ms Fraumano, do you wish to express a view about this matter?

PN103

MS FRAUMANO: I’d have to reserve Gribble’s right to be able to cross examine anyone that was being relied on for information. I’m not sure what concerns Ms Kelly has, but we would have to reserve the right to cross examine anyone that was being relied on and information being relied on.

PN104

THE COMMISSIONER: Right, okay. Fine.

PN105

MR LANGMEAD: Sorry, Commissioner. I should say that by my suggestion procedure I wouldn’t be accepting at this point that they should be receiving new evidence at all, but for the sake of providing the information to us so that we can make an evaluation. It’s only for that purpose.

PN106

THE COMMISSIONER: I implicitly understood that, but thank you for being specific, Mr Langmead. I appreciate it. Perhaps if we just take it one step at a time on this matter. Dr Kelly, would you be comfortable with providing that aspect of the documentation in the manner in terms of your members and their contribution to this issue in the matter that Mr Langmead has suggested, but armed obviously with the entirety of what you would have and we can then address this issue when we first get together on Tuesday the 11th and we’ll just be sensible about it? Would that be okay? Reserving everybody’s rights, I'll make that really clear.

PN107

But I’d like to actually move it forward otherwise we’re going to end up in a stalemate and I’m conscious of wasting people’s time and the Commission not being in a position sooner rather than later to make a call on the application.

PN108

MR LANGMEAD: Commissioner, we anticipate being able to quickly evaluate whether or not we need to seek further details and we’d advise Ms Kelly about it and the Commission of that as soon as possible.

PN109

THE COMMISSIONER: Brilliant. That will be fantastic. Excellent, thank you very much. Dr Kelly, is that a suitable - - -

PN110

DR KELLY: Do I understand what’s being asked is that the material coming from the members is de-identified in the first instance and the union reserves its rights to seek further and betters or cross examine or whatever it may seek to do?

PN111

THE COMMISSIONER: Yes, that’s correct. Yes, I think that’s a fair summary everybody? Yes, that’s correct, Dr Kelly. Okay, fine. Well, this matter is adjourned then until Tuesday 11 April at 9.30. The Commission stands adjourned.

<ADJOURNED UNTIL TUESDAY 11 APRIL 2006 [1.27PM]