BP2007/4026, Transcript of Proceedings [2007] AIRCTrans 601 (2 November 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17680-1

COMMISSIONER CRIBB

BP2007/4026 BP2007/4027 BP2007/4028 BP2007/4029 BP2007/4030 BP2007/4031 BP2007/4032 BP2007/4033 BP2007/4034 BP2007/4035 BP2007/4036 BP2007/4037 BP2007/4040 BP2007/4041 BP2007/4043 BP2007/4044 BP2007/4045 BP2007/4039 BP2007/4038

s.451(1) - Application for order for protected action ballot to be held
Health Services Union
and
Mildura Base Hospital
(BP2007/4026)

MELBOURNE

4.05PM, MONDAY, 22 OCTOBER 2007

PN1

PN1

MS L SVENDSEN: I appear on behalf of the Health Services Union.

PN2

MR P CLARKE: I seek leave to appear on behalf of the employers in this matter.

PN3

MR P CORDOVA: I seek leave to intervene on behalf of the Department of Human Services. The department as the funder of these agencies has a big interest in the outcome of the ballots.

PN4

THE COMMISSIONER: Ms Svendsen, is there any objection to the appearance of Mr Clarke and the intervention of Mr Cordova?.

PN5

MS SVENDSEN: No, there are no objections, Commissioner.

PN6

THE COMMISSIONER: Mr Clarke, leave is granted to appear and Mr Cordova, leave is granted to intervene.

PN7

May I ask a preliminary question. Are the parties planning to approach these matters this afternoon as one, so to speak, even though they are individual applications, or are the parties wishing to deal with them one after the other? Is there agreement between you about how we're proceeding?

PN8

MS SVENDSEN: We have not actually specifically addressed that question, Commissioner. We have addressed the question of the proceedings in total and I'm advised that there are no general objections to the matters we're putting and we're in agreement about how those applications will be made. I'm happy to run them whichever way suits either the Commission and/or Mr Clarke and Mr Cordova.

PN9

THE COMMISSIONER: Mr Clarke.

PN10

MR CLARKE: Commissioner, we're in your hands how you wish to deal with them, whatever is expedient.

PN11

THE COMMISSIONER: I was wondering if expediency would be the best route for the parties. Obviously, if each of the 19 applications is granted, as they are separate applications, there would be separate orders issued so that end of the process I think is covered off, if I could put it that way, but just in terms of the actual requirements of the Act, that I'm sure you both going to address me about in one way or another, I'm just wondering how the best way it is from your perspective as to how to deal with them. I didn't know whether one of you or the other had a preference for going through each one absolutely or whether on the basis of all 19 have been called on and at the end, hypothetically, if the application is granted, there'll be 19 orders, we deal with it as a block.

PN12

MR CLARKE: I think the second option would be the one that we would opt for, other than - I think all the orders are the same other than Forensicare.

PN13

THE COMMISSIONER: Forensicare I gather, yes.

PN14

MS SVENDSEN: There is, Commissioner, only one small difference in the question on one of the matters and that is Forensicare, BP20074045.

PN15

THE COMMISSIONER: Sorry, could you say that again, Ms Svendsen?

PN16

MS SVENDSEN: The only difference in actual structure of the draft orders that we have proposed is in the matter BP20074045 which relates to Forensicare and the question is slightly different for Forensicare. Some of the proposed actions have been removed because of the nature of their service and some additional ones have been included. Other than that the actual substance of each of the orders is essentially the same.

PN17

THE COMMISSIONER: That is with respect to the timetable proposed and the questions to be put?

PN18

MS SVENDSEN: There are some matters in relation to the timetable. The timetable proposed is the same. There are some matters that we will put to you in relation to the timetable that I have discussed both with Mr Cordova and
Mr Clarke and had some discussions with the AEC about but they are not about changing the draft orders in fact.

PN19

THE COMMISSIONER: Okay, fine. How about, in terms of your submissions, you approach it on the basis that we're talking about one block except for where there are differences, for example Forensicare.

PN20

MS SVENDSEN: Thank you, Commissioner, I'd be happy with that matter and I'm happy to identify exactly what any differences are at any time.

PN21

THE COMMISSIONER: I think that would be of assistance to all of us. Thank you. Sorry, Mr Clarke.

PN22

MR CLARKE: We would be agreeable to that, Commissioner.

PN23

THE COMMISSIONER: Excellent, thank you. Having interrupted you hugely, Ms Svendsen.

PN24

MS SVENDSEN: These applications are for protected action ballot orders under section 451 of the Workplace Relations Act. They were lodged on 18 October, last Thursday. Each application was served by email on Friday to the employer and to VHIA as their representatives. We do have delivery receipts in relation to each of those email matters.

PN25

Included with the applications to the Commission was a declaration by Lloyd Williams on behalf of each application that the proposed industrial action was not in support of prohibited content and a declaration advising that he was authorised to make the applications under our rules.

PN26

The bargaining periods in the case of each matter were initiated by Health Services Union on 1 October 2007. Prior to that a claim had been made on the employers and VHIA and the Department of Human Services as the funding body on 6 July. We did commence discussions between the parties on 14 August. At that stage we had discussions only in relation to information about the union claim that was on the table and essentially those discussions took the form of going through that claim detailing what was meant by each of the matters that were there and where there were questions by either DHS or VHIA, they were answered as best we could.

PN27

On 12 September this year we received a claim by VHIA on behalf of its members. They also initiated a bargaining period at that stage. They provided the same claim in relation to each of their members, except in relation to some individual matters that were raised for Austin Health, Bayside Health, Bendigo Health, Eastern Health, Forensicare, Goulburn Valley Health and Melbourne Health. An additional individual claim was made on 26 September at which time each of the services provided more detail of the individual matters and from 12 September we'd actually started some more serious negotiations .

PN28

On 2 October VHIA and DHS formally rejected the union claim and essentially at that stage, the union claims in totality were rejected except that we were in agreement on one matter and that was that we were seeking individual agreements in each service. We have to be thankful that we were in agreement in one matter.

PN29

THE COMMISSIONER: Particularly that one, I would have thought.

PN30

MS SVENDSEN: Particularly that one. ANF is a party to this current agreement but not a party to these proceedings. I think I probably need to make that clear, given that they've been a party to all of those discussions but not currently.

PN31

As I indicated, we are seeking separate agreements with each individual employer. We have on several occasions ought information from each in respect of any matters they wish to discuss during these negotiations. We have had additional discussions locally at several of the services in range of a number of restructuring matters in particular. With each of those matters we've indicated that they may form an integral part of the overall agreement once we've reached one with the service and the services are aware of that and are happy with those discussions going on.

PN32

Going back to the applications that were made, on 19 October the AIRC, the Australian Electoral Commission, VHIA and I believe DHS, although we might have an email problem in terms of that not having got through to Mr Cordova, were provided with copies of draft orders in relation to the above matters. Those draft orders are essentially as they were tabled last Friday, except for some small minor matters that we would note.

PN33

In BP20074043, which was noted as Austin Hospital, the matter should read Austin Health, the name of the service should be Austin Health and we would seek to vary that. In matter 4028, Beechworth Hospital should read Beechworth Health Services. In matter number 4030 Mercy Health and Aged Care should ready Mercy Public Hospitals Inc.

PN34

THE COMMISSIONER: Is that hospitals plural Inc?

PN35

MS SVENDSEN: Hospitals, plural, Inc. In matter number 4034 Peninsula Health Psychiatric Services, it should read Peninsula Health. My apologies for those misnamed services.

PN36

There is one other matter that I have had very brief discussions with the AEC in relation to and with my colleagues this afternoon. Of the draft order in question in clause number 8, the question to be put before the employees and members on the ballot paper in each case reads:

PN37

In support of reaching a union collective agreement with -

PN38

service named:

PN39

- do you support the taking of protected industrial action against -

PN40

service named:

PN41

- which may involve one or more of the following.

PN42

I'd seek in each of the orders to change the service name directly to "your employer" so it would read:

PN43

In support of reaching a union collective agreement with your employer, do you support the taking of protected industrial action against your employer which may involve one or more of the following.

PN44

I've had discussions with the AEC this morning in relation to that and they've indicated that it will make a difference to them in the production of the ballot paper. I've asked my colleagues whether they have any problems with that, they will be able to answer for themselves, but put that to them this afternoon that that change be made. They, in terms of the draft orders, are the only matters that we would be seeking to vary in any way.

PN45

The only other difference in any of the draft orders is that the draft order for Forensicare, question 8 has a slightly different list of bans and industrial action to those proposed in the other 18 draft orders. That is accurately reflected in the draft order for Forensicare.

PN46

The final matter that I would just like to raise with the Commission in relation to the timetable, I've had discussions with Paul Davis from the Sydney office of the AEC and John Nellor from the Melbourne office of the AEC, who would actually be conducting the ballots, and been advised of their preferred timetable which is longer than their normal minimum timetable because they would have 19 separate rolls to produce and ballot papers to produce and that's why they have asked for the timeframes that they've done.

PN47

THE COMMISSIONER: That is suitable from the union's perspective?

PN48

MS SVENDSEN: Commissioner, we'd prefer shorter ones but we will live obviously with the ones that the AEC provides us with and they're the ones that I have put into the draft orders so the roll would close on Monday, the 29th, next Monday, Monday is the 29th, Friday was the 25th. The role would close on Monday, the 29th and the ballot would open on 5 November and close on 14 November are the proposed dates.

PN49

I've had some additional discussions with my colleagues in relation to their concerns about the 4 pm timeframe tomorrow afternoon and some of their employers. I've also had some discussions with the AEC but I might leave that to Mr Clarke to talk to you about.

PN50

THE COMMISSIONER: Thank you, Ms Svendsen. Mr Clarke.

PN51

MR CLARKE: Commissioner, as you're aware this is an application under section 451. My instructions are that we don't oppose the application, that's the applications of all the services and additionally, the changes that Ms Svendsen has suggested in terms of the employer names and to clause 8, we don't oppose those.

PN52

As Ms Svendsen has said, the one matter that I would like to draw your attention to is in paragraph 5 and the timeframe thereof, 4 pm on the 23rd, if I can just make a note to the Commission that we will use our best endeavours to meet that and we understand if that's the order given, that's the requirement but I guess I'm just flagging that it's a reasonably tight timeframe, you know, within 24 hours .....

PN53

THE COMMISSIONER: Have you had an opportunity to discuss that matter with the union?

PN54

MR CLARKE: Sorry, Commissioner?

PN55

THE COMMISSIONER: Have you had an opportunity to discuss that matter, the issue of the tight timeframe between now and 4 o'clock tomorrow afternoon - have you had the opportunity to discuss that with the union?

PN56

MR CLARKE: Yes, I have, Commissioner. My understanding is the union are in some ways acting in accordance with the AEU - - -

PN57

THE COMMISSIONER: The AEC?

PN58

MR CLARKE: AEC, the Australian Electoral Commission in terms of what their preference is is my understanding so it's really just to note because my understanding is if services don't comply with that timeframe, that may mean that some of that gets reported back to the Commission so I guess we're just flagging it, some indulgence there by some services, but look, we'll endeavour to meet that timeframe. I think there may be some allowance by the Australian Electoral Commission. Perhaps Ms Svendsen can give you some further details on that.

PN59

THE COMMISSIONER: Thanks, Mr Clarke.

PN60

MS SVENDSEN: If it helps the Commission, I spoke to Mr Nellor just prior to us coming to session and advised him that Mr Clarke had indicated that they were concerned that a couple of the services might have some problems but they weren't able at this stage to identify them. VHIA have also indicated to me that they have a couple of minor gremlins in their system at exactly the wrong time for them and I've spoken to Mr Nellor and he indicated to me very clearly that he did not believe - so long as the majority of services were in tomorrow, that it would make any difference to them because they obviously wouldn't get all the rolls done immediately, that he said the only negative that he saw arising out of it was that the services would be reported as having been slow when he provides the report to the Commission, but that was only a notation at the end of the day. He didn't see any problem with that if we were all fine and he did indicate that if it got too late he would come back to the Commission and that that would be the only thing that he would have to do.

PN61

THE COMMISSIONER: Thank you, Ms Svendsen.

PN62

MR CORDOVA: .Commissioner, before you proceed any further, could I just ask Ms Svendsen to run through the timetable for the ballot again. The draft order I've got has got the date of Friday the 26th for the closure of the roll and I wasn't sure from her submissions whether she's asking that to be changed. It's at paragraph 7.

PN63

THE COMMISSIONER: Would it be worthwhile if we just went off the record for a moment to discuss some of these details?

PN64

MR CORDOVA: Yes, that's fine.

<SHORT ADJOURNMENT [4.26PM]
<RESUMED [4.30PM]

PN65

THE COMMISSIONER: Mr Cordova.

PN66

MR CORDOVA: I have nothing to add to Mr Clarke's submissions, Commissioner.

PN67

THE COMMISSIONER: Is there anything further that needs to be dealt with with respect to each of the matters before me this afternoon?

PN68

MS SVENDSEN: Not from my perspective thank you, Commissioner

PN69

THE COMMISSIONER: Mr Clarke?

PN70

MR CLARKE: I have nothing further, Commissioner.

PN71

THE COMMISSIONER: Mr Cordova?

PN72

MR CORDOVA: Nothing more, Commissioner.

PN73

THE COMMISSIONER: The Commission has before it presently
19 applications for a protected action ballot. Each of those applications is by the Health Services Union Victoria Number 2 Branch pursuant to section 451 of the Workplace Relations Act. The HSU's application seeks a ballot of employees in the mental health area of Austin Health, Ballarat Health Services, Bayside Health, Beechworth Health Services, Bendigo Health, Eastern Health, Goulburn Valley Health, Latrobe Regional Hospital, Melbourne Health, Mercy Public Hospitals Inc, Mildura Base Hospital, North East Health Wangaratta, Peninsula Health, Royal Children's Hospital, South West Health Care, Southern Health, St Vincent's Health, Wodonga Regional Health Service and Forensicare. The application seeks a ballot of employees with respect to each of those employers and it is a ballot of employees who are members of the HSU.

PN74

The Victorian Hospitals Industrial Association represents each of those employers who I have just named and they do not oppose any of the applications that are currently before the Commission.

PN75

The Department of Human Services was granted leave to intervene on the basis of their interest as funder of each of the services that I have named. DHS supported the submissions of the VHIA but made no additional submissions in their own right.

PN76

Each of these applications falls to be determined pursuant to section 461 of the Act. Section 461 sets out the preconditions about which the Commission must be satisfied before granting any of these applications. I will deal with each of the preconditions in turn. Section 461(a) requires that during the bargaining period the applicant has genuinely tried to reach agreement with the employer. On the basis of all of the material before me with respect to each of the services, I am satisfied that the conditions set out in section 461(1)(a) have been met with respect to each of the applications before me.

PN77

Section 461(1)(b) requires that the applicant is genuinely trying to reach agreement with the employer. On the basis of all of the material before me I am satisfied that the conditions set out in section 461(b) have been met with respect to each of the applications before me.

PN78

With respect to the requirements of section 461(c), on the basis of the material before me I conclude that the applicant is not engaged in pattern bargaining as defined in section 421 of the Act. Therefore with respect to each of the applications I am satisfied that the conditions contained in section 461(1)(c) have been met.

PN79

Section 461(2) provides the Commission with the discretion to refuse each of these applications. On the basis of the material before me I am not satisfied that the grounds for refusal as set out in section 461(2)(a) and (b) have been met for any of the applications.

PN80

The granting of each of these applications would not be, in my view, inconsistent with the objects of this division which is to establish a transparent process which allows employees to choose by secret ballot whether to authorise industrial action. In addition, there was no evidence put that the applicant or a relevant employee has contravened a provision of this division or an order or direction under this division.

PN81

Having been satisfied as to the requirements in section 461(1) and seeing nothing in the evidence that would justify an exercise of the discretion in section 461(2) to refuse any of the applications before me, I am obliged to grant each of the applications.

PN82

With respect to each of the 19 applications an order for a protected action ballot will be issued in the terms that have been discussed which vary each of the draft orders with respect to the 19 applications. Each of these applications is now adjourned.

<ADJOURNED INDEFINITELY [4.37PM]