AG2009/14656, Transcript of Proceedings [2010] FWATrans 943 (28 May 2010)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2009/14656

s.185 - Application for approval of a single-enterprise agreement

Application by Clinpath Laboratories Pty Ltd
Clinpath Laboratories Enterprise Agreement 2009
(AG2009/14656)




Adelaide

1.06PM, THURSDAY, 12 NOVEMBER 2009

PN1

THE SENIOR DEPUTY PRESIDENT: Good afternoon. Ms Cann, I take it you're representing Clinpath and, Mr Navas, I understand you're representing the Health Services Union. Now, I issued some preliminary findings in this matter on 14 October. Those preliminary findings indicated that Clinpath could request a hearing and it gave Clinpath the option of providing a written response. In this instance you appear to have done both, Ms Cann. You've requested a hearing but you've also provided me with a written response. I've read that response and you've now managed to completely and utterly confuse me.

PN2

MS CANN: I'm sorry.

PN3

THE SENIOR DEPUTY PRESIDENT: So that I'm hoping that today will provide an opportunity to address that confusion. The preliminary findings that I issue in these matters are issued where I identify concerns about either or both the process followed to reach any agreement or provisions of the agreement itself. Sometimes the process issues are such that notwithstanding the parties have the opportunity to ask for a hearing they agree that the issue is of such a fundamental nature that the application is bluntly doomed, and in that case they sometimes go back and revisit the agreement and pick up some of the content issues that I raise. Some of those content issues in the alternative, if the agreement was reached through a process consistent with the Act can be addressed by way of undertakings.

PN4

In this case I'm not quite sure what Clinpath are proposing to do. It might be best if I take you through those preliminary findings and your response which I'm taking you've both got. Mr Navas, have you got a copy of that response?

PN5

MR NAVAS: Yes, I have. My advice in this context, and there is a difference of opinion in terms of clause 13 of the agreement between Clinpath and ourselves.

PN6

THE SENIOR DEPUTY PRESIDENT: Let's get to clause 13 in a minute. We've got a few others to deal with before we get there. In paragraphs 5 and 6 of my preliminary findings I identify a confusion about the information provided to me in the Form F17. In that form Clinpath advised me that it first invited the employees to approve the agreement on 27 August and hence I raise that question about if the employees were given the notice of representative rights on 14 August the extent to which the 21 day requirement had been met. Now, the information provided to me in the November letter asserts that all eligible staff had access to the document for a total of 26 days. Can I get you to outline for me in very clear and precise terms exactly when the notice of representational rights was issued, when the agreement was provided to employees, when they were asked to vote and when in fact they did vote.

PN7

MS CANN: The document was provided to the employees on 14 August, they were asked - - -

PN8

THE SENIOR DEPUTY PRESIDENT: I'm sorry, my questions were very specific. I'll break them down. When was the notice of representational rights issued?

PN9

MS CANN: We didn't issue one.

PN10

THE SENIOR DEPUTY PRESIDENT: Well, let's just stop right there. No notice of representational rights means I can't approve an agreement. Do you have a copy of the Act with you?

PN11

MS CANN: Not with me, no, Commissioner.

PN12

THE SENIOR DEPUTY PRESIDENT: My associate is going to loan it to you and I'll get her to turn to section 185. You won't be on this section for very long. This simply specifies the provisions under which an application can be made. I'm satisfied the application has been made on that basis. But if I can then take you to section 188, and you will see there that I need to be satisfied that subsection 181 subsection (2), which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of representational rights is given, has been met. Do you want to go back to section 181, there's no extra charge for that, but that makes it quite clear that in subsection (2) the request to approve the agreement must not be made until at least 21 days after the day on which the last notice of representational rights is issued.

PN13

There is simply no capacity for me to approve an agreement unless you've issued a notice of representational rights and provided at least 21 days before employees vote on that agreement proposal. There's no capacity for me to waive that requirement or to approve the agreement on that basis.

PN14

MS CANN: Commissioner, can I just clarify the representational rights?

PN15

THE SENIOR DEPUTY PRESIDENT: The notice of representational rights.

PN16

MS CANN: Is different than providing them with a copy of the agreement?

PN17

THE SENIOR DEPUTY PRESIDENT: My word it is. Now, you will find the notice of representational rights in schedule 2.1. To the extent there's any doubt about that, at the conclusion of the hearing if you stay put in the room my associate will get you a copy of that notice of representational rights. I am asking Fair Work Australia to make sure it's more readily visible on the website because you're not the first to encounter this problem by way of a simple oversight. The whole structure of the agreement making system is built around the notice of representational rights which establishes that employees can elect or select to have bargaining representatives of their choice. Now, absent that notice being issued I've simply got no capacity to approve the agreement.

PN18

I think therein lies perhaps the major hurdle here. So leaving that issue aside, if you were to repeat the process that then takes me to the issues I identified in paragraph 8, and I understand that if you would repeat the process then Clinpath at least would propose to make some amendments to clause 3, to clause 6, to clause 7, to clause 11, and then we get to the potentially contentious clause 13. Now, I also understand that an amendment would be proposed to clause 41. It might be best if I help explain that issue. For many years parties have tended to write dispute resolution provisions around the old section 170LW which empowered the former Commission to deal with disputes arising from the agreement.

PN19

The new Act is phrased quite differently and a prerequisite for approval is that a dispute resolution process has got to provide the capacity for disputes arising from the agreement and from the National Employment Standards to be addressed and hence the need for a far broader dispute resolution provision. You might want to have a look at the model provisions that are set out in the Act in that regard and, again, if you can't easily access those my wonderful associate could help you. I understand that you propose to make amendments to clause 41 and to - I'm a little unclear as to what you propose in relation to the flexibility clause but I'm guessing that if you were rewriting your agreement you would incorporate or build in a flexibility clause. That's' not a show stopper, in that if there is no flexibility clause or a flexibility clause that I consider doesn't meet the requirements of section 202 then the model flexibility provisions are taken to be a term of the agreement. But it's a question more for the parties to consider and, indeed, given some of the disputes you've had it may be a very wise matter for you to debate and consider.

PN20

Now, that takes me back to clause 13. I've got no capacity to tell you what you should or shouldn't write in your agreement in relation to clause 13 except that I need to look at the agreement on the basis that I need to be satisfied that it meets the requirements of that no disadvantage test, at least until the end of this year. Now, if you want to have a debate about what you put in it then you can for the next couple of minutes have it here, but please in bear in mind I can't say one side is right and one side is wrong and won't go to whether or not you've got an agreement.

PN21

The agreement is fundamentally an agreement between Clinpath and its employees. You might be the bargaining representative for those employees, Mr Navas, but it's fundamentally a question of what those employees endorse. Now, does that help you?

PN22

MR NAVAS: In some ways, except, Commissioner, that we have an understanding of where the enterprise agreement, the increases will come about, and that also aligning correspondence provided to us and therefore advice and as a bargaining agent I have to ..... the staff of when the enterprise agreement will be. That is reflected on the enterprise agreement itself, however the position that Clinpath now has taken is that will apply as from today when the Commission approves, when the Fair Work Australia will approve the agreement which is - - -

PN23

THE SENIOR DEPUTY PRESIDENT: I'm not approving the agreement today. I cannot make that clearer to you.

PN24

MR NAVAS: I understand that.

PN25

THE SENIOR DEPUTY PRESIDENT: There are two options and I'll leave it entirely to you. I need to make it absolutely abundantly clear that I don't intend to approve the agreement. You can withdraw the agreement or alternatively I'll dismiss the application. It matters not to me, but I won't be approving the agreement today and I can't do so unless I can be satisfied about that notice of representational rights. That means that one way or another you will need to repeat the process if you want an agreement. In that process the employer will need to issue a new notice of representational rights or any notice of representational rights. There is no capacity to finalise or make the agreement within 21 days. Please be cautious in the count of 21 days. Start counting on the day after you issue the notice of representational rights. Don't count day one as the day you issue that notice.

PN26

Now, at some stage you should give employees seven days notice of when it is you anticipate that vote will occur. During that 21 days the employer in accordance with the good faith bargaining requirements needs to meet with not just your union, Mr Navas, but any other bargaining representative that advises the employer that they are seeking to bargain on behalf of employees. If you come up with an agreed proposal and the employer puts that out to the vote and it's endorsed by employees then the particularly unfortunate news is you're going to have to go through the agony of repeating Form F17 again and I know it's not much fun, Ms Cann. I'm also asking you that that form be improved as much as possible.

PN27

A new application would need to be filed. You ought to put on that application that the matter in an earlier iteration has been handled by myself. It will then almost certainly come direct to me and I would hope to be able to give you an answer within a few days, particularly if you take account of those issues that I've raised in those earlier preliminary findings. If you address all of those questions that should expedite the process quite substantially. Now, if you change the document as a result of discussions that's your call. If you agree on a different start date for the wage increases or a different way of phrasing that start date that's your call. I can't tell you what to write into it. Does that make any sense? I realise it's not good news for you but I simply have no discretion to go beyond that.

PN28

MS CANN: Can I just clarify, Commissioner, what you've just said, you can either withdraw the application or dismiss it; what's the difference between the two?

PN29

THE SENIOR DEPUTY PRESIDENT: Put it this way. It probably matters not. We can't proceed with the application. If you tell me you'd rather withdraw it and go out and repeat the process then you're in good company. Sometimes parties would rather advise they've withdrawn it than have it dismissed by Fair Work Australia, which has the potential to create, or to imply the agreement was in some way inherently deficient. Whereas all I'm saying here is there was a flaw in the process and it was a flaw of a magnitude and type that I can't fix for you.

PN30

MS CANN: Can I just clarify one other thing?

PN31

THE SENIOR DEPUTY PRESIDENT: You certainly can.

PN32

MS CANN: The notice of representational rights, the fact that the EB committee would have met prior to us setting it off now and agreed on behalf of the staff that they wanted to go to vote doesn't count. I'm just checking.

PN33

THE SENIOR DEPUTY PRESIDENT: There's no way of avoiding going past go and collecting $200.

PN34

MS CANN: We both missed that.

PN35

THE SENIOR DEPUTY PRESIDENT: There's simply no capacity.

PN36

MS CANN: So our only option is to put the document out to vote again?

PN37

THE SENIOR DEPUTY PRESIDENT: Yes.

PN38

MS CANN: And issue the notice and then put the document out to vote?

PN39

THE SENIOR DEPUTY PRESIDENT: Do you want to characterise it as a withdrawal or do you want me to dismiss the application? Once again it's entirely your call, but make no bones about it, I cannot approve the - - -

PN40

MS CANN: I think we'll withdraw it and then we can communicate.

PN41

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Now, have I answered all of your questions? Fundamentally what I'm saying is that if the new agreement given to me meets those requirements that are set out in sections 185 through to 189, and such that you've followed those necessary steps and it reflects the document that I've already been given, possibly with the changes that you've alluded to in your correspondence of November, then you can expect the approval decision to follow shortly afterwards. If you haven't complied with that process you could be in diabolical strife. If you make changes to the agreement then I will need to review the agreement against the requirements of the Act and particularly that no disadvantage test.

PN42

If I have a problem or an issue with that you get another one of these preliminary findings documents which try to give parties the opportunity to fix the problem by way of undertakings. I won't dismiss the application without a hearing but I won't convene a hearing unless people want one. Does that make sense?

PN43

MS CANN: Yes.

PN44

THE SENIOR DEPUTY PRESIDENT: All right. Don't go away, please stay here and my associate will get you a copy of that notice of representational rights.

PN45

MS CANN: Thank you.

PN46

THE SENIOR DEPUTY PRESIDENT: I'll adjourn the matter on that basis.

<ADJOURNED INDEFINITELY [1.27PM]