AG2009/24391, Transcript of Proceedings [2010] FWATrans 199 (23 February 2010)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 24859-1

DEPUTY PRESIDENT SAMS

AG2009/24391

s.185 - Application for approval of a greenfields agreement

Application by Central Coast Surgery Centre Pty Ltd
(AG2009/24391)





Sydney

11.48AM, THURSDAY, 11 FEBRUARY 2010

PN1

THE DEPUTY PRESIDENT: Could I have the appearances.

PN2

MR TYRELL: Tyrell, initial G Your Honour appearing for the Health Services Union and with me today is Ms Johnson, initial F.

PN3

THE DEPUTY PRESIDENT: Yes.

PN4

MS STREET: If it please the tribunal Street, initial L, I appear on behalf of the Central Coast Surgery Centre.

PN5

THE DEPUTY PRESIDENT: Thank you, well who wishes to lead?

PN6

MS STREET: I can do that Your Honour.

PN7

THE DEPUTY PRESIDENT: Yes.

PN8

MS STREET: Thank you Your Honour. Your Honour this is a greenfields enterprise agreement between the Central Coast Surgery Centre and the Health Services Union. As a greenfields agreement it's our respectful submission that certain sections of the act that (indistinct) apply with respect to separate ballots or balloting just (indistinct) of the agreement, initiation of bartering process. Mainly ss.173, 174, 180(Item 186) do not apply. So Your Honour if I can take you to the required content of the agreement, and I might leave the first one till last and there's a reason for that Your Honour. Your Honour the dispute settling procedure can be found in accordance with s.186 of the act, can be found in Clause 8 on p.6 of the agreement.

PN9

THE DEPUTY PRESIDENT: Yes.

PN10

MS STREET: It's at the top Your Honour.

PN11

THE DEPUTY PRESIDENT: Yes.

PN12

MS STREET: It's our respectful submission that that complies with the act. Your Honour the agreement flexibility clause can also be found in Clause 6 on p.4 of the agreement. It's a model clause Your Honour, and it's out position that that complies with the act. The s.205 requirement for consultation can be found in Clause 8 on p.6 Your Honour, that's the consultation procedure, and it's to do with grievance procedures basically. It's at the top of p.6, sorry Clause 8 on p.6. I might have my clauses mixed up Your Honour. Sorry, the previous page on p.5 talks about consultation and dispute resolution.

PN13

THE DEPUTY PRESIDENT: Yes.

PN14

MS STREET: I apologise for that. Your Honour the parties have found subsequently to file in the agreement there was a great rush Your Honour to get a number of these agreements in prior to 1 January, and it's come to our attention when we're going through the agreements, that the nominal expiry date - this agreement doesn't have a nominal expiry date expressed within it in accordance with s.186(5) of the act. So if you go to Clause 3 parties and terms, it talks about a two years date from the date of filing as a greenfields. In consultation with my colleagues at the Heath Services Union, and acting on instructions from the Central Coast Surgery Centre, the parties were hoping that Your Honour might agree to accept an undertaking in accordance with s.190 where there is a nominal expiry date being 22 February 2012. And as part of this undertaking a copy of this undertaking with a nominal expiry date will be affixed to all copies of the agreement, and will be distributed by the employer to the employees once they commence, and the undertaking will be explained to all employees as they commence.

EXHIBIT #1 UNDERTAKING GIVEN BY THE EMPLOYER.

PN15

Your Honour the reference instrument in this case would be the private hospital employees state NAPSA, and the salary increases on commencement – sorry, not the salary increases, the wages on commencement vary between $38 per week and $60 per week over the relevant NAPSA rate. I should've said Your Honour that this agreement covers only clerical staff; it doesn't cover any class of employee in the Private Hospital Employees (State) Award. And it's our respectful submission that it satisfies the No Disadvantage Test because essentially all the conditions from the Private Hospital Employees Award have been moved across and we've just tried to ensure it complies with the relevant sections of the Fair Work Act, and none of the conditions have been varied apart from quite significant salary increases. So it's our respectful submission that it does comply with the No Disadvantage Test, and I might just hand over to my colleagues to see what they have to say.

PN16

THE DEPUTY PRESIDENT: Yes.

PN17

MS STREET: Unless you have something (indistinct).

PN18

THE DEPUTY PRESIDENT: Well the rates of the adjustments are a little confusing. Well unclear is probably a better word, the wage rate at September 2010.

PN19

MS STREET: It's meant to be 1 September 2010.

PN20

THE DEPUTY PRESIDENT: I see.

PN21

MS STREET: Once again a typing error Your Honour, we can make that clear.

PN22

THE DEPUTY PRESIDENT: All right, well I'll note that in the decision I issue in due course. So it's 1 September in each case?

PN23

MS STREET: That's correct Your Honour.

PN24

THE DEPUTY PRESIDENT: Yes Mr Tyrell?

PN25

MR TYRELL: Your Honour the HSU concurs with the submissions put forward by
Ms Street, and certainly have no objection to the proposal with regard to undertakings to resolve some of those issues with regard to compliance in the agreement. We're conscious that we'd like an agreement in place for this organisation so that there is something there other than the modern award for the intended staff. We're very supportive of getting the agreement made with whatever undertakings the tribunal sees fit.

PN26

THE DEPUTY PRESIDENT: Wouldn't you ordinarily cover persons other than clerical staff at a operation such as this?

PN27

MR TYRELL: Yes Your Honour.

PN28

MS STREET: They would Your Honour, but in a day surgery it basically only exists off nursing staff and clerical staff, there are no other staff normally, (indistinct) it's a little bit different to a hospital.

PN29

THE DEPUTY PRESIDENT: I must say I haven't noticed, and I'm a regular visitor at day surgery. I'm usually thankful for all the nurses and the other staff do. All right, so cleaning and other staff?

PN30

MS STREET: Outsourced.

PN31

THE DEPUTY PRESIDENT: I see.

PN32

MR TYRELL: That coverage is generally with LHMU Your Honour. So where its outsourced or privatised industry.

PN33

THE DEPUTY PRESIDENT: Right, but the employer is - - -

PN34

MR TYRELL: If it's - - -

PN35

THE DEPUTY PRESIDENT: - - - the employees are directly employed they're members of yours aren't they?

PN36

MR TYRELL: That's correct, yes Your Honour.

PN37

THE DEPUTY PRESIDENT: All right thank you. All right well having heard the submissions of Ms Street and Mr Tyrell, and noting the documentation which has been filed in support of the application for approval of the greenfields agreement, I'm satisfied that all of the requirements of the act in respect to the processing, lodgment and the agreement itself have been complied with. I note in particular that an undertaking has been given in terms of Exhibit 1 in the proceedings, such as to refer to a nominal expiry date, and that undertaking will of course pursuant to the relevant provision be taken as being part of the agreement. I further note that the wage rates in the agreement are very much in excess of the relevant reference instrument, and in addition provide for a 3.5 per cent increase on 1 September 2010, and a further 3.5 per cent increase on 1 September 2011. Pursuant to s.54 of the act I shall make a greenfields agreement to be known as the Central Coast Surgery Centre and HSU greenfields enterprise agreement 2009 – 2011 to take effect seven days hence being
18 February, and to remain in force with a nominal expiry date of 22 February 2012, and I thank the parties for their attendance and their answering the questions that the tribunal has had. Ms Street thank you very much.

PN38

MS STREET: Thank you Your Honour.

PN39

THE DEPUTY PRESIDENT: You've done a very good job I must say with respect to this agreement that I might say should be replicated by others who have lodged such agreements. I now adjourn.

<ADJOURNED INDEFINITELY [11.58AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 UNDERTAKING GIVEN BY THE EMPLOYER. PN14