U2008/2390, Transcript of Proceedings [2008] AIRCTrans 104 (14 March 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18179-1

COMMISSIONER CRIBB

BP2008/2390

s.451(1) - Application for order for protected action ballot to be held
Health Services Union
and
Royal Children’s Hospital
(BP2008/2390)

MELBOURNE

1.11PM, TUESDAY, 26 FEBRUARY 2008

PN1

MS H BROWN: I appear for the Health Services Union in this matter.

PN2

MR R CORBOY: From Victorian Hospitals Industrial Association on behalf of our respondent members.

PN3

THE COMMISSIONER: Thank you, Mr Corboy. Ms Brown?

PN4

MS BROWN: Thank you, Commissioner. These are two applications before you today under section 451 of the Workplace Relations Act in relation to a protected action ballot for Peter MacCallum Cancer Institute and also for the Royal Children's Hospital and in respect of the employees in the following categories.

PN5

Medical scientists, audiologists, dieticians, clinical perfusionists, medical physicists, genetic counsellors, pharmacists and psychologists and any other employees employed under the terms of the relevant certified agreements being the Public Health Sector Medical Scientists Pharmacists and Psychologists Royal Children's Hospital Certified Agreement 2004 to 2007 and the Public Health Sector Medical Scientists, Pharmacists and Psychologists Peter MacCallum Cancer Institute Agreement 2004 to 2007.

PN6

Commissioner, the papers have been filed and served including the applications, copies of the relevant declarations, copies of bargaining period notices that were served on the employer and the VHIA in or about October and a copy of draft orders. If I could just draw your attention to a couple of issues that have just come up in relation to the draft orders and then I might go on to address you in relation to section 461 of the Act.

PN7

In each draft order the provision for lists by both the employer and the union should actually read as Thursday 28 February and I believe agreement is now that they would be provided by 5 o'clock on Thursday and the close of the roll at 7.1 would be 29 February 2008.

PN8

THE COMMISSIONER: Thank you.

PN9

MS BROWN: Thank you, Commissioner. In relation to the bargaining period, a copy of which was filed with the application, the document that was with the bargaining period namely the log of claims, at that the back of that, has formed the basis of discussions with the BHIA and also the DHS, the funding body, both before Christmas and more recently in private conference within the Commission before Commissioner Smith and those discussions are ongoing.

PN10

Commissioner, in relation to section 461 of the Act the protected action ballot was not made in relation to a matter that contains either prohibited content and it's not in the process of undertaking pattern bargaining and we filed with the Commission declarations of Dr Rosemary Kelly, the branch secretary, in respect of that. You have a copy of the draft order and we submit that all the requirements of the Act are met and those are the submissions of the union. Unless you have any further questions?

PN11

THE COMMISSIONER: Thank you. Mr Corboy?

PN12

MR CORBOY: Thank you, Commissioner. I confirm that discussions occurred regarding the draft orders. That will need an alteration to the first paragraph in paragraph 5. It's ..... where it's got Friday 1 March. That will read Friday
29 February, sorry, Thursday 28 February which actually matches the date in 5.5 because within that clause there are two dates for serving the actually Commission, the Australian Electoral Commissioner. So the first paragraph should read, Thursday 28 February 2008, a list to employees, and that is the same date that's reflected in 5.5.

PN13

THE COMMISSIONER: Sorry, Mr Corboy. As I understand it from
Ms Brown's submissions, in 5.5, the 4 pm is being changed to 5 pm.

PN14

MR CORBOY: It becomes 5 pm, yes it has, Commissioner, thank you. So just that those dates and those times concur, that's reflected in both applications, I believe.

PN15

THE COMMISSIONER: Could I just ask a question, sorry.

PN16

MR CORBOY: Certainly, Commissioner.

PN17

THE COMMISSIONER: My apologies. Over the page, at the top of page 3, what date should that be? That's the union is to provide to the authorised ballot agent?

PN18

MR CORBOY: That should read, 5 pm Thursday 28, I believe and I am sure that Ms Brown will concur with that.

PN19

THE COMMISSIONER: Is that correct, Ms Brown?

PN20

MS BROWN: That is correct, Commissioner.

PN21

THE COMMISSIONER: Lovely. Thank you.

PN22

MR CORBOY: Which should - that means that those - all those dates for the employer and the union are actually the same time and date. Then we have a change in clause 7.1 where the roll of electors will close at 5 pm and because it's a leap year that should read, Friday 29 February 2008, and that will be in both orders and according to your associate all the other dates are correct. I didn't have to rely on your associate for that.

PN23

THE COMMISSIONER: She's the best there is, Mr Corboy so I think you're - - -

PN24

MR CORBOY: I am not complaining, Commissioner, not at all. So those I suppose are the matters that need to be addressed. Now, when it comes to 461 the VHA does not oppose the application that's being made today by the union, a protected action ballot, and we can confirm that there were discussions prior to December on a private basis and 6 January before Commissioner Smith. I think it was late January. Thank you, Commissioner.

PN25

THE COMMISSIONER: Thank you, Mr Corboy. These matters are two applications by the Health Services Union for protected ballot orders pursuant to section 451 of the Workplace Relations Act. The HSU seeks ballots of employees who are members of the HSU and who are employed by the Royal Children's Hospital and the Peter MacCallum Cancer Institute as medical scientists, audiologists, dieticians, clinical perfusionists, medical physicists, genetic counsellors, pharmacists and psychologists and any other employee employed under the terms of the relevant certified agreement which exists between the HSU and the Royal Children's Hospital and also between the HSU and the Peter MacCallum Cancer Institute.

PN26

The Victorian Hospital Industrial Association represented the two employers and did not oppose either of the applications. These applications fall to the determined pursuant to section 461 of the Act. Section 461 sets out the pre conditions about which the Commission must be satisfied before granting either of the applications. I shall deal with each of the pre conditions in turn. Section 461(1)(a) requires that during the bargaining period the applicant has genuinely tried to reach agreement with the employer.

PN27

On the basis of the material before me I am satisfied that the condition set out in section 461(1)(a) has been met with respect to both applications. Section 461(1)(b) requires that the applicant is genuinely trying to reach agreement with the employer. On the basis of the submissions before me this afternoon I am satisfied that the conditions set out in section 461(1)(b) have been met with respect to both applications. With regard to the requirements of section 461(1)(c) no submissions - sorry, let me start that bit again please.

PN28

With regard to the requirements of section 461(1)(c) there is no basis on the material before me to conclude that the applicant is engaged in pattern bargaining as defined in section 421 of the Act. Therefore I am satisfied that the condition contained in 461(1)(c) has been made. Section 461(2) provides the Commission with the discretion to refuse the application. 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 461(2)(b) have been met for either of the applications.

PN29

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. 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 either of these applications I am obliged to grant both applications.

PN30

Orders for protected action ballots will be issued in the terms that have been agreed between the parties and which were - and the amendments to the draft orders were discussed in transcript earlier in this hearing. Both these matters is now adjourned. The Commission stands adjourned.

<ADJOURNED ACCORDINGLY [1.22PM]