C2007/3248, Transcript of Proceedings [2007] AIRCTrans 464 (17 September 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17366-1

VICE PRESIDENT LAWLER

C2007/3248

s.170LW - prereform Act - Appl'n for settlement of dispute (certified agreement)
Australian Nursing Federation
and
Saitta Pty Ltd t/as Belvedere Park Nursing Home
(C2007/3248)

MELBOURNE

2.07PM, TUESDAY, 04 SEPTEMBER 2007

Continued from 23/8/2007

PN1

THE VICE PRESIDENT: Mr Dwyer, I note your further appearance. Mr Rahilly, I note your further appearance, and Ms Barrett stepping in for Mr .....

PN2

Mr Dwyer.

PN3

MR DWYER: Yes, thank you, your Honour. Just to update you with where we are at with this; in terms of the summonses, although we didn't see Mr Russell Meniere, it appears all the documents have one way or another got to us. At the nursing home the staff are still working; they are working 24 hours a day, seven days a week. There are no residents in the home.

PN4

To our knowledge no nurse administrator has been appointed. I use the word nurse administrator in a general way, as distinct from an administrator under the Companies Act. That's an essential requirement, to have a nurse administrator there, I think, under the terms of a stay order that they received. I think government funding is dependant on them having that administrator. Until they do get an administrator my understanding is there will be no residents brought to the home.

PN5

So for the last two weeks there have been no residents at the home. There has been no formal advice to the staff or to the ANF as to what is going on, other than what I will talk about today; the exchange of letters that we've had. It's a payday this Thursday. We are talking about approximately 24 staff in this facility and there's still a real possibility that this company could go into liquidation.

PN6

THE VICE PRESIDENT: Well that's something over which I have no control whatever, other than perhaps obliging the company in some indirect fashion to pay for Mr Rahilly to be here today. I don't think that's going to make any difference in the grand scheme of things.

PN7

MR DWYER: No.

PN8

THE VICE PRESIDENT: What is the purpose of the re-listing?

PN9

MR DWYER: We did at the last hearing read a number of the issues, discussed a number of issues which were read into transcript.

PN10

THE VICE PRESIDENT: I think that's described in the jargon, isn't it, as a wish list?

PN11

MR DWYER: Indeed. There was in fact a document put together by the parties; one part - - -

PN12

THE VICE PRESIDENT: Mr Dwyer, can I be really tough with you?

PN13

MR DWYER: Yes, please.

PN14

THE VICE PRESIDENT: The Commission, to the extent that it has jurisdiction, is because of a notification pursuant to a dispute resolution procedure in a certified agreement, which dispute resolution procedure was approved under section 170LW. The gravamen of the dispute that has been notified was lack of consultation.

PN15

MR DWYER: Yes.

PN16

THE VICE PRESIDENT: I infer from what you are saying that there has in fact been consultation with the employer, and I'm wondering whether there's any dispute left that the Commission could exercise any jurisdiction in relation to, notwithstanding the potentially available jurisdictional points that Mr Rahilly might have taken but has not taken.

PN17

MR DWYER: Yes.

PN18

THE VICE PRESIDENT: Is there anything further that needs to be - I use the word with some diffidence because I think it's an abuse of the English language, but progressed so far as the particular notification is concerned. Because the inference I draw from what you are saying is that there has in fact been consultation between the union and the employer.

PN19

MR DWYER: There has been some consultation and as a result of that we had sought from them some undertakings which have been - and they responded with a letter which I assume has been sent to you. It may be on your file.

PN20

THE VICE PRESIDENT: I haven't seen a letter but that doesn't mean that it has not been sent.

PN21

MR DWYER: From Belvedere Park Aged Care Service.

PN22

THE VICE PRESIDENT: Yes, the 28th of August, Russell Meniere?

PN23

MR DWYER: That's correct.

PN24

THE VICE PRESIDENT: Doesn't this represent, in terms of the available outcomes under the dispute, as notified a success if Mr Meniere has engaged with you and talked to you and has responded to the matters that you have sought some response on, including a number of positive responses.

PN25

MR DWYER: Yes, it does a movement ahead.

PN26

THE VICE PRESIDENT: I'm putting acid n your Mr Dwyer, what is the utility or what is the point of today's re-listing?

PN27

MR DWYER: Yes, the point I would raise is at the last hearing, the statement or the wish list as you call it, as I indicated it was actually drafted by the parties, that position.

PN28

THE VICE PRESIDENT: Yes.

PN29

MR DWYER: At point 8 of that wish list it was prefaced with the statement, "The company has advised us that should the bed licences be withdrawn the company would not have the capacity to pay the accrued entitlements of its staff". If I could just go to that point. We have an agreement with this company which provides for certain redundancy payments and so forth.

PN30

THE VICE PRESIDENT: Mr Dwyer, can I interrupt you to jump ahead and engage in that attention deficit order practice of imagining where you are heading. The problem of companies, which are the normal employment vehicles, going into liquidation and leaving employees short-changed on their entitlements is a common phenomenon in commerce.

PN31

MR DWYER: Yes.

PN32

THE VICE PRESIDENT: Occasionally it attracts the intervention of governments when there is a sufficient public profile, but most often it doesn't and that results in significant hardship and injustice to employees.

PN33

MR DWYER: Yes.

PN34

THE VICE PRESIDENT: In a society that was structured in an appropriate fashion one might well argue that there would be provision compulsorily made for the protection of employee entitlements against that eventuality. There are no such laws at the moment. But I don't see how the Commission, at the end of the day, could have any jurisdiction -enlighten me or correct me if I'm wrong - to require the employer in this case to do anything that would protect the position of the employees. I personally think that's a profoundly unfortunate state of affairs, but what I personally think is irrelevant because I'm bound to exercise only those powers that the Act authorises me to exercise. I find it hard to conceive how there's any basis to, at the end of the day, make an order which would require the company to do something that amounts to providing security to employees in relation to their outstanding entitlements.

PN35

MR DWYER: Yes.

PN36

THE VICE PRESIDENT: So the issue again becomes what are we doing here today? As much as that response is profoundly unfortunate, from a best case scenario social outcomes perspective.

PN37

MR DWYER: Yes, I would say that I respectfully would disagree with you on anything that you have put forward and I acknowledge that we are here with some very difficult issues, and a difficult point to make. There was - - -

PN38

THE VICE PRESIDENT: Isn't the bottom line this response from Mr Russell Meniere is in fact a very constructive response in parts; and to the extent that he has conveyed to you that the employees' outstanding entitlements are at risk in the event of a liquidation, it's nothing more than a statement of fact that you, under the current legal regime, have to live with?

PN39

MR DWYER: Certainly I think that is the situation. You have asked me why we are here today; what we would like to do is engage further with the company. The basis of why we want to do this is clearly if they make an agreement with us to provide for the benefits, they should at least address this issue of capacity or do something about it. At the moment we've - and it's an unusual situation where we actually have notice this may happen, and yet we say what is the company doing about it? The subject should - - -

PN40

THE VICE PRESIDENT: My difficulty is there's nothing I can do. Let me just embrace that in terms of putting aside - take off the cap of Member discharging an oath to uphold the law faithfully; let's just assume that that is so. It would be desirable for provision to be made but there's no capacity in this Commission to make any orders that would require that to occur. I would urge the parties that it's in the ultimate best interests of everybody, in the truly ultimate cosmic perspective, for the parties to continue to engage on the issue. But the employer may choose to do so; it may choose not to do so. But there's hardly anything more that the Commission can do about it.

PN41

MR DWYER: Yes, thank you, your Honour. I think I've probably exhausted
my - - -

PN42

THE VICE PRESIDENT: Mr Rahilly, I take it, given the very constructive approach that your client has taken thus far, that it would be happy to continue talking to the union about these matters?

PN43

MR RAHILLY: I think so, your Honour. Yes. The difficulty my client is in, of course, is that the appointment of the administrator has not yet been effected by the department; and the instructions I received just before we commenced was the Mr Russell Meniere and the person they sought to have appointed are meeting with the department this afternoon. But the whole intent of my client is that Saitta Pty Ltd will continue to trade as Belvedere Park Aged Care Service; will receive residents; and my understanding last week was - - -

PN44

THE VICE PRESIDENT: Hope to repair its financial position and to proceed to run a profitable business that will leave it in a position to pay entitlements of employees, if and when they cease employment.

PN45

MR RAHILLY: Indeed, yes, and my client's position would be in the unlikely event that they lose the bed licences. But all of that is in the lap of the gods. Nobody knows the answer to that at this stage, but whilst the stay of the department's decision is in effect, and subject to the appointment of the administrator, then my client is free to trade and intends to do so.

PN46

THE VICE PRESIDENT: Yes.

PN47

MR RAHILLY: I think your Honour's position, as you have put it, is the ..... position that I had intended to raise with you today in any event. Yes.

PN48

THE VICE PRESIDENT: Look it's encouraging if I might say so that your client is happy to continue to the union and I would urge that course upon it, in any event.

PN49

MR RAHILLY: Yes.

PN50

THE VICE PRESIDENT: Mr Dwyer, pending some intervention by the Parliament to change the legal regime that exists in relation to protection, or non-protection as the case may be, of employee entitlements, your members' best prospects for not finding themselves left in the lurch, if I could put it that way, is to cooperate with the continued operation of the business in order to make it successful so that the company is in a position to meet entitlements. No doubt you would like to have some discussions with the company about things that might be put in place that would, in return for the fulsome cooperation above and beyond the call of employee duty, see some fund set up or whatever to protect employee interests in the future.

PN51

MR DWYER: Yes, I understand that, your Honour. There's no more I need to add.

PN52

THE VICE PRESIDENT: Okay, fine. I think that leaves us in a position where there's nothing further to do on the file. It can be closed, but to the extent that there is some further difficulty with this file can be reactivated or you can file something for the process. But we should proceed on the basis at the moment that the matter is resolved - sorry, that the matter is finalised as things stand.

PN53

MR DWYER: Yes, thank you, your Honour.

PN54

THE VICE PRESIDENT: Thank you. The Commission is adjourned.

<ADJOURNED INDEFINITELY [2.21PM]