AG2007/601, Transcript of Proceedings [2007] AIRCTrans 510 (2 October 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17458-1

COMMISSIONER CRIBB

AG2007/601

cl.14 Sch. 9 - Appl’n whether an employer is bound by a pre-reform cert. agt.
Application by Australian Nursing Federation
(AG2007/601)

MELBOURNE

1.09PM, THURSDAY, 20 SEPTEMBER 2007

PN1

THE COMMISSIONER: Thank you, gentlemen, I do apologise for the delay in starting today.

PN2

MR D DWYER: May it please the Commission, I appear for the Australian Nursing Federation.

PN3

MR A ROUSE: I appear for Aged Care Services Australia Group.

PN4

THE COMMISSIONER: Thank you. Mr Dwyer.

PN5

MR DWYER: Your Honour, may we just go off the record for a few moments.

PN6

THE COMMISSIONER: Yes. Certainly. Could we go off the record, please.

<SHORT ADJOURNMENT [1.10PM]
<RESUMED [1.24PM]

PN7

THE COMMISSIONER: Thank you very much. Mr Dwyer.

PN8

MR DWYER: Thank you, Commissioner. This is an application, in fact a joint application by Australian - - -

PN9

THE COMMISSIONER: Technically.

PN10

MR DWYER: Technically. It cannot be joint. This is an application which we have discussed with the employer and the application is that the employer be no longer bound by existing certified agreements. There are three of them and I’ll come to the detail shortly.

PN11

Just by way of background, Aged Care Services Australia Group, or ACSAG as we tend to call it, ACSAG, operates a number of aged care facilities in Australia. While the facilities themselves are owned by various companies all the staff are employed by one company which is Aged Care Services Australia Group, with the ACN of 110281760. There is a string of other companies with very similar names. So, all the employees of about 23 aged care facilities are employed by this one company.

PN12

THE COMMISSIONER: Could we go off the record for a moment, please.

<OFF THE RECORD

PN13

THE COMMISSIONER: Thank you, back on record. Mr Dwyer.

PN14

MR DWYER: Yes, thank you, Commissioner. I have just spoken with John Yianoulatos - - -

PN15

THE COMMISSIONER: From the?

PN16

MR DWYER: I won’t try to spell that.

PN17

THE COMMISSIONER: No. Yianoulatos.

PN18

MR DWYER: Yes. From the HSU and he’s asked me to put in an appearance for the HSU and he’s also authorised me to indicate to you that they support the application that has been made by the ANF. So, I’m appearing for both unions.

PN19

THE COMMISSIONER: Excellent. Thank you for clarifying that, Mr Dwyer.

PN20

MR DWYER: Yes. As I have indicated there are three facilities the subject of this application which I won’t go to the detail of. They’re set out in the application - and the pre-reform agreements are in force in one of them and in another two they’re in force but are beyond their nominal expiry date. The situation is this: that ACSAG do have an agreement, which is styled the Aged Care Services Australia Pty Ltd Central Park and the other is ANF and HSU Agreement 2006-08. This is a post-reform agreement. If you wish a copy I could tender a copy of it.

PN21

That agreement covers - it’s a sweeping agreement which covers all of the employees in ACSAG Victoria. So we say - and we've said before in the previous matters on this, the default position here is that Central Park agreement would apply to all employees of ACSAG but for the transmission of business rules. And the application today is to terminate the agreements that are covered by the transmission of business and employees will then default to the - what we have called the shortly, the Central Park Agreement.

PN22

The very short form - the effect of the agreement is this: in two facilities there is a pre-reform agreement that have passed their nominal expiry dates. We have been attempting to do things with those facilities. Now that ACSAG came on to the scene, this would mean that these people now have the benefit of a binding agreement and the salaries and dates of effect that would apply. So there are certainly a number of benefits to them.

PN23

In the third case, there is an agreement on foot, a pre-reform agreement. The effect of the transmission - the effect of this application is that one pay rise was delayed by five months. But in the overall situation we believe our members benefit and we would urge you to consider this as an overall benefit for all of our employees and for all of our members of both HSU and ourselves.

PN24

The Act requires that I serve a number of people on this. I will tender one document. The document I have tendered is the document we sent to ANF members but it will be addressed as HSU members and non-union members. But this is one example of what we have done in terms of service. We have written to them and asked our members to circulate this widely, to place a copy on notice boards and to place several copies next to sign-on books, those sorts of things.

PN25

What was attached to it was an explanatory document addressed to all staff, not to HSU but it’s on ANF letterhead as the applicant, headed, “Important Notice to Staff” and points out what’s happening. You’ll see partway down there we talk about ...... We have emphasised the point of ..... binding agreement expires in November 2008. Under the ACSAG proposal there was a delay of five months of on pay rise. So we specifically brought that to the attention of staff.

PN26

We have asked our members to circulate this widely. We have also sent a copy of this - sorry, I’ll come back to that. We attach the salaries, which are there, and we have attached the application, a notice of objection. The application we attached did in fact - and I can say this - did in fact have the matter numbers written on it - the matter number written on it and also date and time and period. And we pointed out - going back to the first letter there containing the issues that the non-union members have to contact you or your associate and provides your email address and phone numbers as well.

PN27

We did serve this formally on HSU and the employer, as required. We also emailed this to Mr Rouse who - and asked him would he also circulate it through the three facilities and all the notice boards and sign-on books. He’s advised me he’s done that and so there’s no exact - well, no precise way that we have to serve people, it's ..... that we should make all efforts and that’s the extent of the submission I make, your Honour, in terms of service.

PN28

THE COMMISSIONER: Just for the record, Mr Dwyer, I would like to mark as a bundle the documents that you’ve just handed up if there’s no objection from Mr Rouse. No?

PN29

MR ROUSE: No.

PN30

THE COMMISSIONER: Thank you.

EXHIBIT #A1 BUNDLE OF DOCUMENTS

PN31

MR DWYER: Thank you. We could ..... the letters of service on those matters and also Mr Rouse has sent an email to all these facilities. I don’t really think we need to go to that extent though ..... made every attempt to circulate them. Briefly, the reasons in support of this - of the application, I’m actually going from my previous submissions but, very briefly, the parties acknowledge we could have gone and done ballots. That is what it comes from a quite long and quite expensive in terms of time for all of us to do this and so we have chosen this method to go ahead.

PN32

But the reasons why we ask that this be supported are: (1) it would be beneficial to the employer and the employees overall; (2) once terminated then employees will be subject to the agreement known as the Central Park Agreement. We’re talking here of a company with up to 23 aged care facilities in Victoria alone; number (3) the agreements are similar to and benefit most employees overall. Their advantages particularly to Sunhill, ..... haven't got a binding agreement; (4) the employee can make efficiency gains by having common payroll systems with common conditions, salaries and dates of increases; (5) the employees will have, certainly in relation to their entitlements, their future pay rises and broadening of their employment opportunities in terms of moving between facilities.

PN33

And (6), the situation whereby transmitted and new employees would receive different salaries and conditions will be avoided. You’re probably aware that if the transmitted employees would be on these agreements any union employees come in on Central Park Agreement anyway and it would be rather messy at the particular workplaces and this avoids that application.

PN34

I think that completes my submissions.

PN35

THE COMMISSIONER: Yes.

PN36

MR DWYER: Except for the draft order which I could email you this afternoon, if you wish.

PN37

THE COMMISSIONER: Yes. Mr Dwyer, thank you. From the Commission perspective, I’m assuming that somebody - and maybe it’s more appropriate to be Mr Rouse, advises that here is the incoming and transfer date and stuff like that.

PN38

MR DWYER: Yes. There is certainly a common ground between us that there has been a transmission of business.

PN39

THE COMMISSIONER: Right.

PN40

MR DWYER: The transmission of business occurred 1 September 2007. From reading of the Act we couldn’t make the application until the transmission had occurred. So the transmission was - the application - if I can - by consent we had discussed this earlier, that we lodge that on the first working day afterward, 1 September, so that we could do this immediately and it’s also common ground that the income employer’s ACSAG and we believe - I know in some other matters there were the - there has been a change of employer, as I made that point earlier, in terms of the definition of what a transmission of business is.

PN41

I know of one facility where no transmission of employee took place even though a new owner is in the facility. But if that - on that point though, on what we would we have certainty there’s certainly a it is a transmission of business and covered by, in this case, schedule - - -

PN42

THE COMMISSIONER: Schedule 9.

PN43

MR DWYER: The pre-reform agreements cover by schedule 9, clause 4(b).

PN44

THE COMMISSIONER: Cool. Thank you, Mr Dwyer. Mr Rouse, is there any you wish to today?

PN45

MR ROUSE: Nothing further, no. Not at this stage.

PN46

THE COMMISSIONER: Mr Rouse, may I ask you as to whether you are consenting to this application?

PN47

MR ROUSE: Yes. I’m consenting to the application

PN48

THE COMMISSIONER: Excellent. That is helpful, Mr Rouse.

PN49

MR ROUSE: Thank you.

PN50

THE COMMISSIONER: Thank you, very much.

PN51

This matter is an application by the Australian Nursing Federation pursuance schedule 9, Part IV, Division 2, clause 14(1)(a) of the Act that Aged Care Services Australia Group be no longer bound to three agreements, Blue Cross Community Care Services (Ballarat), ANF and HSU Certified Agreement 2005-08, Kingston Gardens Aged Care, ANF and HSU Certified Agreement 2002, and thirdly the Bayview Private Nursing Home ANF and HSU Certified Agreement 2002.

PN52

The application is by consent of Aged Care Services Australia Group and in this matter the ANF is also representing - has been given authority to also represent the Health Services Union and the Health Services Union are consenting to the application as well.

PN53

Now, Part IV of schedule 9 of the Act covers transmission of pre-reform certified agreements. Division 2 of Part IV sets out the matters it applies to and the Commission’s powers. Clause 13 defines this application which is:

PN54

If an outgoing employer is bound by a pre-reform certified agreement and the incoming employer becomes the successor, transmittee or assignee of the whole or part of the business of the outgoing employer.

PN55

In this matter the outgoing employer is bound by a pre-reform certified agreement and those are the three agreements that I outlined earlier. The incoming employer, Aged Care Services Australia Group, is the successor, transmittee or assignee of the whole or part of the business of the outgoing employer. Transfer time, which is defined in clause 13(2)(d) of the incoming employer was 1 September 2007. Therefore, on the basis of all of the foregoing, I am satisfied that Division 2 applies in this matter.

PN56

Clause 16 sets out who may apply for an order. In this case, as it is after the transfer time, clause 16(2) applies. The application has been made by the ANF who is - - -

PN57

Could we go off the record for a moment, please.

<OFF THE RECORD

PN58

THE COMMISSIONER: I’ll just go back over that bit again.

PN59

The application has been made by the ANF who is an organisation of employees that is bound by the pre-reform certified agreements and that is clause 16(2)(c).

PN60

Clause 17 requires the applicant to take reasonable steps to give written notice of the application to those persons who may make submissions in relation to the application. The ANF has tendered Exhibit A1 which is a bundle of documents which outline the steps that have been taken to provide written notice of the application to those persons who may make submissions. In addition the tendering of Exhibit A1, the union also outlined in its submissions a number of additional steps that were taken to inform those parties pursuant to clause 18(3) in order to allow those persons an opportunity to make submissions before the Commission.

PN61

Clause 18: before deciding whether to make an order, the Commission must give, in this case those persons set out in clause 18(3), the opportunity to make submissions. Given that the appropriate written notice has been given by the ANF pursuant to clause 17, I am satisfied that the requirements of clause 18 have been met.

PN62

Clause 14(1)(a) of the Act provides the Commission with the discretion to make an order that the incoming employer, which is Aged Care Services Australia Group, is not or will not be bound by the pre-reform certified agreements mentioned earlier. On the basis of the material before me and the submissions made, I am satisfied that on balance, there are good grounds for the Commission to exercise its discretion.

PN63

Accordingly, the Commission orders that the parties to the Blue Cross Community Care Services (Ballarat), ANF and HSU Certified Agreement 2005-08, the Kingston Gardens Aged Care, ANF and HSU Certified Agreement 2002, and the Bayview Private Nursing Home ANF and HSU Certified Agreement 2002 be no longer bound by each of those agreements. The order takes effect from today’s date, which is 20 September 2007.

PN64

This matter is now adjourned.

<ADJOURNED ACCORDINGLY [1.48PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 BUNDLE OF DOCUMENTS PN30