AG2006/3953, Transcript of Proceedings [2006] AIRCTrans 650 (18 April 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14804-1

DEPUTY PRESIDENT HAMPTON

AG2006/3953

APPLICATION BY NATIONAL UNION OF WORKERS & SYMBION PHARMACY SERVICES PTY LTD
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2006/3953)

ADELAIDE

11.28AM, FRIDAY, 07 APRIL 2006

PN1

MR P NORTH: I appear on behalf of the National Union of Workers.

PN2

MR K GREEN: I represent the company, I am the State Operations Manager.

PN3

THE DEPUTY PRESIDENT: Good. Thank you. Mr North?

PN4

MR NORTH: Thank you, your Honour. This is an application pursuant to Division 2 of Part VIB of the Act for the certification of an agreement between the National Union of Workers and Symbion Health Services. I can confirm that the agreement was approved by a valid majority of the employees to be bound by the agreement and further to that, those employees had ready access to the agreement at least 14 days prior to giving their approval. And reasonable steps were taken to explain the contents of the agreement to the employees prior to them giving their approval.

PN5

The proposed agreement is to take effect from the date of certification and shall remain in force for a period of three years, and it is the parties intention for this proposed agreement to replace the previous main Underdale SA Enterprise Agreement of 2004. Unless your Honour has any further questions I will end my submission.

PN6

THE DEPUTY PRESIDENT: Just a couple of matters. Clause 5, the labour hire employees, I take it, Mr North, you contend that that's a matter pertaining to the requisite employment relationships, because it maintains the integrity of the agreement and the resolution of matters between the parties?

PN7

MR NORTH: You are referring to Part B, clause 5?

PN8

THE DEPUTY PRESIDENT: Yes I am. Sorry, yes Part B, clause 5.

PN9

MR NORTH: Yes your Honour, it would be our submission that that clause, B(5), is intended to protect the job security of the employees bound by the agreement and it is not intended to, in any way, restrain or restrict the ability of the employer to engage labour hire employees as they see fit.

PN10

THE DEPUTY PRESIDENT: Very well. The second matter is - which may arise from the genesis of previous arrangements between the parties. On page 27 of the agreement, in Part G, communication. The dispute resolution procedure. I just note that the clause is subject to the provisions of Industrial Employee Relations Act 1994. I presume that should be taken to be a reference to the Workplace Relations Act 1996.

PN11

MR NORTH: Yes your Honour.

PN12

THE DEPUTY PRESIDENT: It's clear that the agreement has been made in accordance with the Federal Act. It is also clear that the disputes resolution procedure refers the matter to the Australian - - -

PN13

MR NORTH: Yes your Honour, I think - - -

PN14

THE DEPUTY PRESIDENT: Commission.

PN15

MR NORTH: Found that's a simple drafting error and it should read Workplace Relations Act 1996.

PN16

THE DEPUTY PRESIDENT: All right. Very well. Good. Thank you.

PN17

MR NORTH: Thank you.

PN18

THE DEPUTY PRESIDENT: All right. Mr Green, is there anything you want to say on behalf of the company?

PN19

MR GREEN: I'm sorry, your Honour?

PN20

THE DEPUTY PRESIDENT: Is there anything you wanted to say on behalf of the company?

PN21

MR GREEN: No, just want to support what Patrick said. The employees have been given adequate opportunity to examine all of the documents. It's the company's wish that we have the agreement for a three year period. There is just one request, your Honour, if I may. The page that refers to the wage rates, it's previously been the outcome that those wage rates have been kept out of the public arena. I would request that that be the case with this agreement also. It is clearly a commercial decision, your Honour. But apart from that, I concur with what Patrick said.

PN22

THE DEPUTY PRESIDENT: Can you just refresh my memory? Was that done - that was done by giving some direction about the publication of the agreement? Is that?

PN23

MR GREEN: Yes it was, your Honour. It was a formal application in an arena such as this with our previous agreements. It has been in place for about 10 years and it is the company's wish that that continue also.

PN24

THE DEPUTY PRESIDENT: All right. I think in the context of the Federal Act which doesn't make express provisions for confidentiality orders, the way in which the Federal Commission has generally dealt with these matters is to indicate that a revised version of the agreement may be published on the website effectively, but that obviously the agreement itself remains on the file as the official record.

PN25

MR GREEN: Okay.

PN26

THE DEPUTY PRESIDENT: Will that be satisfactory from your point of view?

PN27

MR GREEN: That would be satisfactory. It's purely a commercial decision to try and not disclose what our wage rates are, your Honour.

PN28

THE DEPUTY PRESIDENT: I understand. All right. Good.

PN29

MR GREEN: Thank you.

PN30

THE DEPUTY PRESIDENT: Mr North, are you comfortable with that approach?

PN31

MR NORTH: Yes the union is not opposed to that - my friend's suggestion.

PN32

THE DEPUTY PRESIDENT: All right. Very well. Yes look, I will deal with the application now. I have considered the statutory declarations, the terms of the proposed agreement and the submissions that have been made in the context of the statutory approval requirements for a certified agreement under the Act. I would indicate firstly that I am satisfied that the agreement pertains to the requisite relationship and in that context I accept what has been said about clause 5 of Part B of the agreement.

PN33

Secondly, I accept that a valid majority of employees have supported the agreement following the process which has been carried out in accordance with the respective legislative requirements. As to the agreement itself, I have no hesitation in finding it meets the no disadvantage test. It also meets the other requirements for certification. In that light, the Commission does hereby certify this agreement pursuant to the Workplace Relations Act 1996 and I so order. The agreement will come into force on and from today's date and have a life extending for three years therefrom.

PN34

I will sign and append a certification order, supply that to the parties for your own use and records and for use in the workplace. As to the request for confidentiality, I have already indicated that formal confidentiality orders are not expressly provided for in the Federal Act. However, I will indicate that I will issue instructions for a revised version of the agreement to be placed on the Commission's website and provided therefore publicly for reasons which have been suggested by the parties.

PN35

Finally, I note that this is the last agreement that will come to this Commission, assuming the company is a constitutional corporation. Secondly I have no doubt that it was desired by all parties to resolve the agreement and to lock something in place. In this current circumstances in my view that reflects well on management of the company and the union and the members to have achieved that and I am sure that whatever the future holds, the agreement will stand you in good stead and I wish the company, the union and the employees all the best for the future. The Commission be adjourned.

<ADJOURNED INDEFINITELY [11.35AM]