RE2008/2634, Transcript of Proceedings [2008] AIRCTrans 440 (18 August 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18897-1

VICE PRESIDENT LAWLER

RE2008/2634

s.748(9) - Application to Commission for access to non-member records
Australian Nursing Federation
and
Independent Private Hospitals of Australia
(RE2008/2634)

MELBOURNE

1.05PM, TUESDAY, 05 AUGUST 2008

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA TELEPHONE CONFERENCE AND RECORDED IN MELBOURNE

PN1

MR B MEGENNIS: I appear on behalf of the Australian Nursing Federation.

PN2

MS G COLLIER: I appear on behalf of IPHOA.

PN3

THE VICE PRESIDENT: Thanks, Ms Collier. The purpose of this mention was just to work out what's going to happen in a practical sense with this application and whether there are any directions required and what the attitude of the respondent is, Ms Collier. I suspect it's not the sort of matter where there probably needs to be a hearing at the end of the day. I'd be surprised if it's not possible to sort something out.

PN4

MS COLLIER: Your Honour, for the record I'm a little surprised by the application. We indeed would and would of course naturally comply with any order of the Commission. That is a given. And in terms of inspection of the time and wages records I am simply anticipating a visit by the ANF on the 18th, which we will obviously comply. The only issue for us is that the addresses listed is not the address where the payroll records are held. So my intention was to simply write an email to the ANF to advise them of the correct address.

PN5

THE VICE PRESIDENT: When you say the address listed, are you talking about the address on the notice that was served by the union or are you talking about the address in the application, or both?

PN6

MS COLLIER: Both the addresses of the payroll records aren't held at the hospital. They are held at a payroll subcontractor that's somewhere, I believe, south of Brighton in Melbourne.

PN7

THE VICE PRESIDENT: Yes.

PN8

MS COLLIER: So I mean I guess we don't have any issue with the records being available for inspection, it's just that they are not held at the hospital that's referred to in the orders, in the draft orders.

PN9

THE VICE PRESIDENT: So Mr Megennis, I infer from what Ms Collier said that there is no opposition from the employer to the inspection of the records on the date that you've sought, but that there is an issue around the location of the inspection because the records are held essentially elsewhere. Do you have any difficulty with inspecting them at the alternative location that Ms Collier is going to notify?

PN10

MR MEGENNIS: No, your Honour, in terms of ascertaining what the correct address is.

PN11

THE VICE PRESIDENT: So what is the address, Ms Collier?

PN12

MS COLLIER: Look I'm sorry, your Honour, I don't have it to hand. The situation that we're in is that we gave notice to that subcontractor six weeks ago that we intended to in-source the payroll activity so we've been having a little bit of problem with them. I've written him an email this morning to ask him of his correct address and I'm just waiting to hear back. But I can certainly - well, there's two things I can do. I can perhaps provide in writing an assurance and send a photocopy of the information that Mr Megennis by fax to him, or I can provide Mr Megennis with the address. I can do these two things by the end of the week.

PN13

THE VICE PRESIDENT: Okay. Now Ms Collier, there are - I'm not sure how the records are kept, but ordinarily there will be some time sheets or whatever that have been filled in manually and then some computerised records that are generated on the basis of data input from the manually completed time sheets. Is that the sort of arrangement you've got?

PN14

MS COLLIER: Yes it is. However, I'm not sure whether acting director of nursing people actually fill in a time sheet given the seniority of the position.

PN15

THE VICE PRESIDENT: Yes.

PN16

MS COLLIER: I can tell you that the acting director of nursing staff, there are three of them, they are paid $42 an hour and that arrangement has been in place for a little while.

PN17

THE VICE PRESIDENT: In any event to the extent that there are paper manually completed records are you saying that all records, including such records if they exist, are held by this third party contractor?

PN18

MS COLLIER: Yes, that's correct. I believe that each hospital faxes in all of its time sheets at the end of every pay period to the contractor and the contractor generates the pays and generates the pay slips.

PN19

THE VICE PRESIDENT: Okay. And what's your understanding as to what happens to the original document that's faxed? So the contractor has the faxed copy. What happens to the original?

PN20

MS COLLIER: Your Honour, I'm not sure whether they fax them or courier them in. That is something I would have to find out. I don't believe that time sheets are kept at any of the hospitals. We wouldn't have the storage facility for that to occur. So if they are faxed they're probably just destroyed after a short period of time, or they would be couriered in. But in any event I'm happy to find out.

PN21

THE VICE PRESIDENT: Well, it's necessary to find out, isn't it, because if
Mr Megennis is seeking to exercise the rights that he's entitled to exercise under the Act, you need to know what records there are and what locations they are. Because the answers you've given, and there's no criticism in this, but it's unexceptional that you don't have full knowledge of the precise details. But it may be that the records are in fact in two places. In any event, Mr Megennis, I think the better course is to leave it on this basis, that the application will just be adjourned, subject to whatever submissions the parties make, the application just be adjourned generally with your option to reactive it in the event that there are any difficulties that emerge.

PN22

MR MEGENNIS: Yes, your Honour.

PN23

THE VICE PRESIDENT: Are you happy with that course?

PN24

MR MEGENNIS: Yes, your Honour.

PN25

THE VICE PRESIDENT: Ms Collier, are you happy with that course?

PN26

MS COLLIER: Yes. I mean, we're happy to facilitate. If Mr Megennis wants to write an email to me and specify exactly what he requires I'm happy to bundle it all up and post it off or fax it or whatever. That's not a problem. Yes, he can simply write to me.

PN27

MR MEGENNIS: Your Honour, I would have thought that was already clear by way of ANF's previous correspondence to IPHOA setting out the terms of what we were seeking.

PN28

THE VICE PRESIDENT: Yes, okay.

PN29

MS COLLIER: Well I mean, I guess for us is that - I mean I'm sorry that I've been away, but for us the issue was you were seeking an assurance that we would comply with the Commission's order and the Commission's decision and I would have taken the view that we simply would.

PN30

THE VICE PRESIDENT: The Commission hasn't made any decision or order because it doesn't appear that there's any need to do that because the union prima facie has a statutory right to inspect the records in question and you, Ms Collier, are not seeking to raise any objection to that.

PN31

MS COLLIER: No, of course not.

PN32

THE VICE PRESIDENT: Okay. So there isn't any question at the moment of complying or not complying with Commission orders, because there aren't any. There's an exercise of a statutory right by a permit holder and it will either be complied with or it won't. And if it isn't then no doubt the - or if the union has a perception that it's not being complied with then no doubt the application will be reactivated by you, Mr Megennis, contacting my associate so it can be relisted. Now Ms Collier, do you have Mr Megennis's email address?

PN33

MS COLLIER: Yes I do. I'm at home this week, Barry, so if you wouldn't mind just emailing me on an alternative email address which is (email address supplied).

PN34

MR MEGENNIS: Sorry, say it again?

PN35

MS COLLIER: (Email address supplied). If you email me on that address I can probably provide you with the information you require.

PN36

MR MEGENNIS: Yes, thank you.

PN37

THE VICE PRESIDENT: Okay. So Mr Megennis, if there's any further difficulties just contact my associate and that will be relisted at short notice.

PN38

MR MEGENNIS: Good, thanks your Honour.

PN39

THE VICE PRESIDENT: Thanks Ms Collier, thanks Mr Megennis.

PN40

MS COLLIER: Thank you.

PN41

THE VICE PRESIDENT: So the matter is formally adjourned generally.

PN42

MS COLLIER: Thank you so much.

PN43

THE VICE PRESIDENT: That concludes the matter.

<ADJOURNED ACCORDINGLY [1.14PM]