C2007/3798, Transcript of Proceedings [2008] AIRCTrans 125 (19 March 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18221-1

COMMISSIONER CRIBB

C2007/3798

s.170LW - prereform Act - Appl’n for settlement of dispute (certified agreement)
Health Services Union
and
Austin Health
(C2007/3798)

MELBOURNE

10.06AM, THURSDAY, 06 MARCH 2008

Continued from 20/12/2007

PN111

THE COMMISSIONER: Good morning everybody. I think there is a change in appearance, would that be correct?

PN112

MS D HILL: Yes, that is correct, Commissioner. I appear on behalf of Austin Health and with me today is MR K GOGEL.

PN113

MS S BINGHAM: Thank you, Commissioner. I seek leave to appear on behalf of the HSU.

PN114

THE COMMISSIONER: Is there any objection to - - -

PN115

MS HILL: No objection, your Honour.

PN116

THE COMMISSIONER: Thank you, Ms Hill. Ms Bingham, leave is granted.

PN117

MS BINGHAM: Thank you. Commissioner, this morning there is a preliminary issue that the union wishes to deal with and that arises out of the reply submissions that were filed by Austin Health and that goes to a jurisdictional argument. I'm asked through you as to whether Austin Health intends to proceed with that jurisdictional argument. If the Commission pleases.

PN118

THE COMMISSIONER: Thank you, Ms Bingham. Ms Hill?

PN119

MS HILL: Thank you, Commissioner. Yes, the jurisdictional argument was clearly a part of the submissions that we filed with the Commission. It just obviously takes the matters before you into a discussion of jurisdiction because of the very nature of the actual dispute so that's why it's been a part of our submissions that have been delivered to both the Commission and to the union.

PN120

THE COMMISSIONER: Thank you, Ms Hill.

PN121

MS BINGHAM: Thank you, Commissioner. On that basis we would request that today's hearing be adjourned and then preliminary issue of the jurisdiction of the Commission needs to be determined and full submissions and material of which the Austin Health wishes to rely upon with respect to a very technical point I might add, Commissioner. And it goes to the heart of your ability to deal with this matter. It also goes to the heart of your ability to have dealt with this matter on a preliminary basis with respect to the interim order that was made.

PN122

The Commission cannot be serious with jurisdiction if it has none and the parties cannot confer jurisdiction on the Commission if it has none. Now, the four paragraphs contained in the outline of submissions it seems sufficient for us to be able to be accorded natural justice to put a case and a reply. So accordingly we would request that a full submission on the preliminary jurisdictional issues be provided to us and we are given an opportunity to respond and put material on in that regard.

PN123

THE COMMISSIONER: Thank you, Ms Bingham. Ms Hill?

PN124

MS HILL: Commissioner, we don't basically intend to put any further argument in relation to the jurisdictional matter. We've actually already put our arguments to you. We've also incorporated an attachment from the National Gallery of Victoria that goes to the heart of our jurisdictional question. Ms Bingham is right in saying that the parties can't confer jurisdiction to the Commission if there is none. So basically that is our argument. It was delivered on 19 February.

PN125

I would have thought that the union have had ample time to put forward response submissions in relation to that point. I am in your hands, Commissioner, but I think that we've - we were hoping that this matter could all but be made - a decision be made on the paperwork and we've provided ours.

PN126

THE COMMISSIONER: Ms Hill, in terms of the approach today in terms of the proceedings, did Austin Health have a view about whether the jurisdictional issue should be heard first or did you have a view that as is the other normal option in matters such as this where both the substantive issue plus the jurisdictional issue are dealt with in the one proceeding?

PN127

MS HILL: Yes, Commissioner.

PN128

THE COMMISSIONER: Does Austin Health have a view on that?

PN129

MS HILL: Well, it was our view that both matters could be dealt with concurrently. We're simply - we've put the jurisdictional arguments at the back of our submission because we've gone through the merit of where we see our part of the case in the first instance anyway. We're really in your hands in relation to that but we believed that the paperwork is all there from us and we would have thought that the matter could be dealt with. Both matters could be dealt with concurrently.

PN130

THE COMMISSIONER: Okay. Thank you, Ms Hill. Ms Bingham?

PN131

MS BINGHAM: Your Honour - Commissioner.

PN132

THE COMMISSIONER: Is that a promotion?

PN133

MS BINGHAM: Commissioner, the re AEU point has to be determined before you can hear the merits of the case. If there is an issue as to whether you are seized with the jurisdiction to actually hear the matter in toto, it has to be decided first and Commissioner you are apprised as to the fact of Dr Kelly and the other members of the MSAV's present workload with respect to the enterprise bargaining. That was the reason why this matter put off.

PN134

Dr Kelly and Ms Brown and Mr Bremner were in court yesterday on the termination matter. A matter which Austin Health made an application at 6.30 the night before so there has been little time for the union to actually apply itself. I do believe that Dr Kelly wrote to you to advise you that there was a preliminary issue and a jurisdictional concern which was identified by me in conference on Tuesday with respect to this matter and you were notified of that issue as soon as it became a live issue for the union.

PN135

THE COMMISSIONER: I would have thought it was a live issue on
19 February when the Austin's submissions were circulated to both the union and the Commission and it wasn't written in invisible ink as far as I would be aware.

PN136

MS BINGHAM: As I put to you, Commissioner, you are apprised of the present work load of a very small union in dealing with this matter.

PN137

THE COMMISSIONER: I do understand that, Ms Bingham, but the directions with respect to this matter or the interim order actually was in December. This is not something that has been sprung upon the parties in the last five minutes and this matter actually was notified by the union at the end of November last year and the first conference in this matter was in early December.

PN138

MS BINGHAM: Commissioner, from your statement am I likely to assume that you wish to proceed this morning?

PN139

THE COMMISSIONER: Ms Bingham, I need to make it very clear that I do understand the difficulties that your client is in. This matter on the grounds - on similar grounds the matter was, the last hearing date was vacated in order to - - -

PN140

MS BINGHAM: Yes. Facilitate the circumstances surrounding the mediations.

PN141

THE COMMISSIONER: That's correct.

PN142

MS BINGHAM: Around the certified agreement.

PN143

THE COMMISSIONER: That is correct, yes, exactly, and I had no difficulty in that happening. However, there comes a time when there has got to be fairness and for me that point in time is now and I'm not without understanding. I want to make that very clear but this is not the first time it would be the second time.

PN144

MS BINGHAM: I have very specific instructions with respect to this matter if the Commission wishes to proceed today.

PN145

THE COMMISSIONER: Right. That's fine. In terms of the jurisdictional issue that's been raised, the Commission tends to have two approaches to dealing with jurisdictional objections and the two pathways are if a party who is raising the objective absolutely says got to determine jurisdiction before there is any ventilation of the issues regarding merit. That's the course that the Commission then takes.

PN146

The other course is that often - it doesn't matter which party it is but the party who has got the jurisdictional objection, if that party is then comfortable it's their position that they think it's more efficient for both the jurisdiction and the merit to be heard within the one proceeding, the Commission tends to do that. In this matter as I understand it from Ms Hill the party who has the jurisdictional objection is, their position is that the merits and jurisdictional issue should be heard in the one proceeding. Obviously the Commission decision may be a longer one or it may be a shorter one but that's as I understand it the Austin's position and so in accordance with, you know, normal practice within the Commission that is the way the Commission would wish to proceed this morning.

PN147

MS BINGHAM: My instructions, Commissioner, is to withdraw the application presently before you. We do not intend to proceed today. We will issue relevant proceedings in a court ….. jurisdiction in the State of Victoria. No further submissions on that.

PN148

THE COMMISSIONER: Thank you, Ms Bingham. Is there anything that you wish to say, Ms Hill?

PN149

MS HILL: No Commissioner. It's disappointing we brought people in today to provide witness evidence and there is a lot of paper work. It's been time and effort that's gone into this case. But nonetheless if the union chooses to withdraw its application, it's their application. Thank you.

PN150

THE COMMISSIONER: Exactly. Thank you. This matter is adjourned.

<ADJOURNED ACCORDINGLY [10.18AM]