AG2007/576, Transcript of Proceedings [2007] AIRCTrans 401 (15 August 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17212-1

VICE PRESIDENT LAWLER

AG2007/576 AG2007/577 AG2007/578 AG2007/579 AG2007/580 AG2007/581 AG2007/582 AG2007/583 C2007/2920

cl.14 Sch. 9 - Appl’n whether an employer is bound by a pre-reform cert. agt.
Australian Nursing Federation
and
Lower Plenty Garden Views
(AG2007/576)

MELBOURNE

10.03AM, TUESDAY, 31 JULY 2007

PN1

MR D DWYER: I appear on behalf of the Australian Nurses' Federation.

PN2

MR J YIANOULATLOS: I appear on behalf of the Health Services Union.

PN3

MR A ROUSE: I appear on behalf of Aged Care Services Australia.

PN4

THE VICE PRESIDENT: Thank you.

PN5

MR DWYER: Your Honour, there are several amendments I'd like to make to the orders. My suggestion is if you agree is to have a short conference with you to see if we can explain what matters you may need to be put on the record and we for your information we have a proof of service, the fact that we've served people as the Act doesn't provide for strict service on every employees so we'll indicate what we've done to ensure everybody has been advised. The second thing is on the record we will put all the details and I've typed up a new set of orders which may assist you.

PN6

THE VICE PRESIDENT: We will go off the record.

<OFF THE RECORD

PN7

THE VICE PRESIDENT: Yes, Mr Dwyer.

PN8

MR YIANOULATLOS: Forgive me, your Honour, on behalf of the Health Services Union I just need to clear up some issues. One of them is in relation to our standing here at this forum. We're seeking application for leave to intervene pursuant to section 101 of the Workplace Relations Act for the record.

PN9

THE VICE PRESIDENT: Mr Yianoulatlos, I can understand entirely why the HSUA would be seeking to formally join in the applications and I take it there's no objection to an order granting intervention to the HSUA. Mr Dwyer, no objection?

PN10

MR DWYER: No objection.

PN11

THE VICE PRESIDENT: Mr Rouse?

PN12

MR ROUSE: No objection.

PN13

MR YIANOULATLOS: Thank you, your Honour.

PN14

THE VICE PRESIDENT: Pursuant to section 101 I grant leave to the HSUA to intervene in each of the matter and I note that the HSUA joins in the application made by the ANF, so that it is now technically and formally a joint application.

PN15

MR YIANOULATLOS: Thank you, your Honour. Yes, Mr Dwyer.

PN16

MR DWYER: Thank you, your Honour. Just to give you a brief overview, Aged Care Services Australia Group or ACSAG as we call it operates a number of aged care facilities in Australia. While these facilities themselves are owned by various companies, all the staff are employed by a single company which is called Aged Care Services Australia Group. ACSAG has a post reform agreement, Aged Care Services Australia Group (Central Park and Others) ANF and HSU Collective Agreement 2008. I would like to tender that.

PN17

THE VICE PRESIDENT: I will mark that agreement as exhibit 1.

EXHIBIT #1 AGED CARE SERVICES AUSTRALIA GROUP (CENTRAL PARK AND OTHERS) ANF AND HSU COLLECTIVE AGREEMENT 2008

PN18

MR DWYER: Your Honour, the agreement, if I could just very briefly take you to clause 4 of the agreement, the agreement says that it's binding on ACSAG, the Australian Nursing Federation and the Health Services Union. I will use those terms, ANF and HSU and it's also binding on all persons whose employment is at any time when the agreement is in operation subject to the agreement. Clause 4.1 says it is binding on Aged Care Services Australia Group with regards to its operations in the state of Victoria and that then it is only limited by designations such as nurses, special care workers and others which fall within the eligibility rule of either the ANF or the HSU, so in our submission it's a very wide coverage of persons. There's no limitation on who it may cover.

PN19

THE VICE PRESIDENT: So if it was only an issue of the construction of this agreement without regard to the operation of the Act, there would be no doubt that all of the employees in the in-coming facilities would be covered by the agreement?

PN20

MR DWYER: That's certainly correct in our submission and you may note the agreement operates until 30 November 2008. ACSAG has been purchasing a number of aged care facilities and we're advised has purchased further facilities. Today we're dealing with nine facilities where transmission of business has occurred. The employer has changed to ACSAG as I've mentioned before and therefore it goes without saying that we're seeking that a finding that a transmission of business has occurred in these nine facilities, a new employer has taken place.

PN21

I mention that because I've been in another matter where the employer in fact didn't change, even though the company changed. I think it's important to make that point, that there has been a change of employer and it would fulfil we submit the requirements of a transmission of business. There's four categories of applications, although I think three of them are going to be dealt with at one. We have a post reform agreement, we have a pre-reform agreement. The post reform agreement applies to the first three matters. The pre-reform agreement still in operation applies to matter number 5 and there are four matters where a pre-reform agreement is in operation, but has passed its nominal expiry date and that's matter numbers 4, 6, 7, and 8. I will hand up a sheet, your Honour, I will call it a summary sheet which will just give you a quick reference.

PN22

THE VICE PRESIDENT: Thank you.

PN23

MR DWYER: If I could tender that, your Honour. As it contains some details, I will tender it.

EXHIBIT #2 SUMMARY SHEET

PN24

MR DWYER: The summary sheet outlines what I have just put to you and provides dates of transmissions and the application numbers which apply. In our view, the classifications or categories 1, 2 and 3 of the pre-reform and post reform are agreements that are still current and the pre-reform agreement that has passed its nominal expiry date are all covered - I withdraw that. The pre-reform agreements are covered by schedule 9, clause 14, which appears to be a mirror of the section 592, transmission of business and the last matter covers an award. I will come back to that matter, so let me say the post reform agreement is covered by section 590, the pre-reform agreement is covered by schedule 9, clause 14 which, without going through it, it appears to be a mirror situation to cover the transition.

PN25

THE VICE PRESIDENT: Sorry, clause 9, schedule 14?

PN26

MR DWYER: Clause 14 of schedule 9. That is on the summary sheet, your Honour.

PN27

THE VICE PRESIDENT: Yes. Thank you.

PN28

MR DWYER: The applications before you, these are consent applications. The parties are in agreement and what we seek to do is to have all employees covered by one agreement. With a transmission of business, they would of course be covered by this one agreement, the Central Park agreement, after 12 months following the transmission of business. We're seeking to do that early for a number of reasons. I will come to those in one moment. We also acknowledge that we could have gone and tried to do ballots and sort all this out through the facilities, but this would be quite a cumbersome operation that would be a burden on the employer. What we're providing here is an agreement that is at least equal to what people already have or better and that's why these applications are being made and we're trying to avoid the difficulties of doing that very thing, of going out and having ballots in all the facilities and creating a lot of work. Of course, obviously if some detriment was there, we would have done that and we've been through the agreements and in our view people are at least as well off, if not better off, in a number of cases.

PN29

THE VICE PRESIDENT: Thank you.

PN30

MR DWYER: The reasons we're making it, (1) it's beneficial to the employer and the employees, (2) once terminated, all employees will be subject to agreements known as Central Park. I should not use the word terminated. If the employer is no longer bound by the agreements, they will all be subject to an agreement known as Central Park; (3) the agreements are similar to and benefit most employees. Overall there are advantages to employees of ACSAG who will immediately be covered by these agreements and binding agreements. The employer can make efficiency gains by having common conditions, salaries and dates of increases, (5) the employees will have certainty in relation to their entitlements, their future pay rises and broadening of their employment opportunities, that is they could move between facilities without any problem and finally, (6) the situation whereby transmitted and new employees will receive different salaries and conditions will be avoided.

PN31

It must be a heart-breaking situation in some cases where new employees are covered by an agreement and the transmitted people may be on lesser conditions in that case. The situation here is we will be making application that the parties be no longer bound by the agreements. This in our view would then allow the employees to - I will use the word default to the Central Park agreement, so to achieve what we're seeking, we're seeking a trigger, for want of a better word, to terminate the transmission.

PN32

In terms of the items number 1, 2 and 3 - sorry, facilities number 1, 2 and 3 on the summary sheet, we're making application under section 590 that the parties be no longer bound by the agreement. I will provide a set of draft orders for you shortly that you may consider and we can amend as appropriate if necessary, so for the first three, we're making the application that the parties be no longer bound by the agreement. Items 4, 5, 6, 7 and 8, we're making application under clause 14 of schedule 9 in the same terms, that the parties be no longer bound by the agreements and the date of effect of those orders we're seeking would be today.

PN33

This leaves just one matter, that is number 9 on the list. It's covered only by an award. The situation is this. We've considered section 596(3) of the Act which if I could perhaps read from the explanatory memorandum. The proposed section 126A(3) which is now known as section 596:

PN34

Would allow for the transferring employee to elect to be covered by the new employees' existing collective agreement ...(reads).. required because there is no general mechanism for awards to be terminated as per workplace agreements.

PN35

I would perhaps end the quote there. While we're representing our members here, we would just ask our members formally to provide a letter to the employer. Mr Rouse will confirm that he's agreeable for people to move immediately to the new agreement and therefore the application as we made it under the section 596 that the employer be no longer bound by the award is not necessary and we won't require an order.

PN36

THE VICE PRESIDENT: In fact, it doesn't appear there is any power to make such an order.

PN37

MR DWYER: The final matter is service. Under the Act, we're required to take all actions that we can to serve on the parties and on the employees copies of our application. We have done that. I wish to tender firstly letters of service that were sent to the parties. I will elaborate shortly. Your Honour, these are copies - the first two are just letters of service which have our application attached on ACSAG and the Health Services Union. The following two letters, we've enclosed a copy of our notice to staff. I will come to that in a moment and the last letter is an email from Mr Rouse indicating that the notice has been sent out by himself to all his facilities.

PN38

THE VICE PRESIDENT: This is only in relation to matters 576 and 583?

PN39

MR DWYER: No, all matters, the nine matters.

PN40

THE VICE PRESIDENT: On the face of the documents, the headings indicate only AG2007/576 and AG2007/583. In any event, you tell me that in fact what was enclosed was applications in respect - - -

PN41

MR DWYER: I will tender that now.

PN42

THE VICE PRESIDENT: The correspondence that has been handed up will be exhibit 3.

EXHIBIT #3 CORRESPONDENCE

PN43

MR DWYER: I wish to tender one further document.

PN44

THE VICE PRESIDENT: The Commission can act on uncontested submissions from the bar table here and I obviously would act on the submissions that you make, Mr Dwyer. By all means hand up the documents and you can support them with the submissions as well.

PN45

MR DWYER: I think it might be useful to have this document.

PN46

THE VICE PRESIDENT: Thank you.

PN47

MR DWYER: Your Honour, this document goes to the issue of serving every employee within the workplace and what it is is a letter to our job representatives which has asked them to place a copy of the attachments on notice boards and place them around sign on boards and circulate them widely within their facility. The second page is a copy of the notice that we advised people of it and importantly, perhaps at the end there you will note that we've advised members if they had any issues or any employee, if they had any issues, that they could contact the Commission and your associate's details were provided in the letter.

PN48

THE VICE PRESIDENT: I will mark that bundle of documents as exhibit 4.

EXHIBIT #4 BUNDLE OF DOCUMENTS

PN49

THE VICE PRESIDENT: To the best of your knowledge, the delegates from each of the workplaces posted those notices and they are available to all employees?

PN50

MR DWYER: They did, your Honour, to the best of my knowledge and attached to that was the actual application which was attached to the notice of service which had correctly the AG numbers and the C number marked on it and the time and date of the hearing today. This was also sent to both HSU and Mr Rouse. Mr Rouse's emails confirm that he also circulated this to all the workplaces as well, so in terms of service, that is what I have done. They would be my submissions. Sorry, one final thing, the draft orders. I think you may have a copy.

PN51

THE VICE PRESIDENT: Yes. You've handed up a document called orders and findings, but I think the position is that I simply need to briefly outline the facts, in terms of an ex tempore decision briefly outline the facts, record the fact of an agreement between the three parties who are represented here today as to what should be occurring and the desirability and the agreement of the parties to achieve the end which these applications are directed towards, deal with service and then make orders firstly pursuant to section 591A of the Act in relation to matters AG2007/576, 577 and 578, being an order that the parties to the relevant certified agreements are no longer bound by those agreements and then in relation to matters 4 through to 8 make equivalent orders pursuant to clause 14(1)(a) of schedule 9 of the Act and then simply note the position in relation to the Viewhills facility to which matter C2007/2920 relates and the apparent lack of jurisdiction to make any order, any equivalent order in relation to the employees that are there bound by - have the benefit of the Nurses Victorian Health Services Award 2000 and to simply note the effect of section 596(3) and the intent of the parties to obtain the agreement of the 15 or so employees who are affected by the transfer in relation to the Viewhills facility.

PN52

MR DWYER: Yes. Perhaps if we might have a look at number 4 on that list. I don't think an order is necessary.

PN53

THE VICE PRESIDENT: That is not an order that I make. I simply note that that is the effect of clause 4.1 of the agreement in circumstances where orders have been made pursuant to section 590 and clause 14.

PN54

MR DWYER: Yes. Thank you, your Honour.

PN55

THE VICE PRESIDENT: Now, Mr Rouse, you're happy with all of that?

PN56

MR ROUSE: Yes, sir.

PN57

THE VICE PRESIDENT: And you join in the application?

PN58

MR ROUSE: Yes.

PN59

MR YIANOULATLOS: Yes, we support the application, too.

PN60

THE VICE PRESIDENT: Thank you. The Commission has before it eight applications - sorry, nine applications, the details of which I will come to. The applications arise out of the acquisition by Aged Care Services Australia of nine aged care facilities. In relation to those nine facilities, employment was governed either by a pre-reform certified agreement, in some instances expired, in other instances not or a post reform agreement and in the case of one of the facilities, namely the Viewhills facility, employment is governed by the Nurses Victorian Health Services Award 2000.

PN61

Aged Care Services has a pre-reform certified agreement entitled the Aged Care Services Australia Group Pty Ltd (Central Park and Others) ANF and HSU Collective Agreement 2006-2008 which applies to all of the operations of Aged Care Services Australia Group Pty Ltd in the state of Victoria in relation to relevant employees, relevant employees of those who are employed in the functions that come within the eligibility rules of the Australian Nursing Federation and the Health Services Union.

PN62

I should note that Aged Care Services Australia Group Pty Ltd is the sole employer of relevant employees throughout the state of Victoria and all aged care facilities run by Aged Care Services Australia. The collective agreement to which I've been referring which is exhibit 1 in these applications I will refer to as the Central Park Agreement. The Central Park Agreement provides for terms and conditions of employment that are the same as or better than the terms and conditions of employment enjoyed by employees in each of the nine facilities to which these applications relate immediately prior to the transfer of employment and continuing until now.

PN63

The upshot is that it's in the interests of the employees of each of the nine facilities to obtain the benefit of the Central Park Agreement and the employer sees benefits for itself in joining in the applications and achieving that particular outcome, so I should record that there has been an agreement between Aged Care Services Australia Group Pty Ltd, the ANF and the HSU that these applications are made for the purposes of achieving as the parties intend that all employees in the nine facilities to which the applications relate will after today be entitled to the benefits conferred by the Central Park Agreement.

PN64

The agreement between the three parties to which I am referring is one that is made for the benefit of the employees of the nine facilities. In relation to service, I rely upon the submissions, the unchallenged submissions of Mr Dwyer and exhibits 3 and 4 and I am satisfied that appropriate service has occurred. In matters AG2007/576 through to 583, I will be making orders pursuant to either section 590(1)(a) of the Workplace Relations Act or alternatively clause 14(1)(a) of schedule 9 of the Act.

PN65

Section 590 applies to those applications where the pre-existing agreement is a post reform agreement. In the remainder of the applications, clause 14 will be applicable because in those instances the pre-existing agreements are pre-reform agreements. On its face, section 586(2) of the Act has an operation that would prevent the Central Park Agreement from applying to employees in the eight applications, AG2007/576 through 583. However, I am persuaded by the position of the parties that section 590(1)(a) permits me to make an order that the parties to the pre-existing agreements be no longer bound by those agreements and that such an order will mean that the parties are no longer bound by those agreements, notwithstanding the provisions of section 586(2) and the terms of section 588(3) corroborate or lend weight to the view that that will be the effect of an order made pursuant to section 590(1)(a).

PN66

In any event, I have noted that the intent of the parties collectively is that the employees should be able to take the benefit of the Central Park Agreement and the employer wishes to assume the obligation of observing the terms of the Central Park Agreement in relation to the relevant employees and what I have said about sections 586(2) and 588(3) and 590 apply equally in relation to the equivalent provisions in schedule 9 insofar as the existing agreements are pre-reform agreements, so by consent and for the reasons I have given in matters number AG2007/576, 577 and 578, pursuant to section 590(1)(a) I order that the parties to firstly the Lower Plenty Garden Views ANF and HSU Collective Agreement 2006-2009 be no longer bound by that agreement and in relation to the Rosanna Views ANF and HSU Collective Agreement 2006-2009, I make an order that the parties to that agreement be no longer bound by that agreement.

PN67

In relation to the Goonawarra Aged Care Facility ANF and HSU Collective Agreement 2006-2008, I make an order that the parties to that agreement be no longer bound by that agreement. In each instance, the order will take effect from today. In relation to matters AG2007/579 through to 583, pursuant to clause 14(1)(a) of schedule 9 of the Act, I make orders that the parties to the Kiverton Park Aged Care Facility ANF and HSU Certified Agreement 2002, the Amity ANF and HSU Certified Agreement 2005-2008, the Millward ANF and HSUA Certified Agreement 2002, the Carrum Private Nursing Home ANF and HSUA Certified Agreement 2002 and the Hallam Private Nursing Home ANF and HSUA Certified Agreement 2002 be no longer bound by those agreements and in the case of each of those orders, they take effect from today.

PN68

In relation to the application in matter C2007/2920, the parties have agreed that the Act does not in fact contain a mechanism that permits the Commission to make an order which will have an equivalent effect in that matter as the orders that I have just made in relation to matters AG2007/576 through 583. The relevant provision in the Act is section 596(3) and more generally division 5 of part 11 of the Act. Division 5 of part 11 contains provisions for the continuing operation of awards in relation to employees in a transmitted business for a transmission period and it would appear that the only mechanism that's been made available by the parliament for employees to escape the continuing operation of the transmitted award is if the employee agrees to a collective agreement, in this case the Central Park Agreement operating in relation to that employment.

PN69

I understand that in relation to the particular aged care facility to which the application in C2007/2920 relates number about 15 and what is proposed is that the unions and the employer will jointly outline the relevant facts to those 15 employees and invite them to agree that the Central Park Agreement will operate in relation to their employment and it's clear that it will be in the interests of those employees to make such agreement or to give such agreement and once it's given, the Central Park Agreement will operate in relation to those 15-odd employees. Now, Mr Dwyer, apart from the preparation of formal orders, does that do what you wanted to achieve?

PN70

MR DWYER: Yes, it does. Thank you very much, your Honour.

PN71

THE VICE PRESIDENT: I may reduce those oral reasons to something that is in a slightly expanded form in a written fashion so that this particular problem when it arises in the future in other areas, the parties will have the benefit of something that's in writing. Nothing further?

PN72

MR DWYER: No, nothing further.

PN73

THE VICE PRESIDENT: Thank you. The Commission is adjourned and formal orders to the effect that I've pronounced orally will issue in due course. The Commission is adjourned.

<ADJOURNED INDEFINITELY [11.07AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 AGED CARE SERVICES AUSTRALIA GROUP (CENTRAL PARK AND OTHERS) ANF AND HSU COLLECTIVE AGREEMENT 2008 PN17
EXHIBIT #2 SUMMARY SHEET PN23
EXHIBIT #3 CORRESPONDENCE PN42
EXHIBIT #4 BUNDLE OF DOCUMENTS PN48