AG2012/9719, Transcript of Proceedings [2012] FWATrans 1133 (12 November 2012)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1034946-1

COMMISSIONER GAY

AG2012/9719

s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Application by Moira Healthcare Alliance Inc
(AG2012/9719)
Home and Community Care Services (Moira Healthcare Alliance) Enterprise Agreement 2010

(ODN AG2010/12985)
[AE881737 Print PR503053]]




Melbourne

11.31AM, THURSDAY, 25 OCTOBER 2012

PN1

THE COMMISSIONER: Yes, may I have the appearances, please.

PN2

MR S. SHEPHERD: Shepherd, initial S, appearing for the ASU, Commissioner.

PN3

THE COMMISSIONER: Yes, thanks, Mr Shepherd.

PN4

MR J. DEAN: John Dean, appearing for Moira Healthcare Alliance.

PN5

THE COMMISSIONER: Yes, good. Thank you. And you have with you MS W. ROSS?

PN6

MR DEAN: That's correct.

PN7

THE COMMISSIONER: Yes, all right. I'm happy to proceed in the most efficient way. Does anyone want to say something about the application, or would you prefer there be a conference? What's the position? What do you want to say, Mr Shepherd?

PN8

MR SHEPHERD: Yes, Commissioner, I wouldn't mind going into a brief outline of my submissions before we move into conference.

PN9

THE COMMISSIONER: Yes, of course.

PN10

MR SHEPHERD: I will try and keep it brief, Commissioner.

PN11

THE COMMISSIONER: No, you're not - it's always a welcome thought, but you needn't truncate your submissions.

PN12

MR SHEPHERD: Okay, I'll give you my full submissions, then. The ASU obviously is here to oppose the application made by Moira Healthcare Alliance to terminate the enterprise agreement that covers the employer and their employees as well as us. Under section 226 there are two conditions that must be met before FWA can terminate an agreement: the first is that it is not contrary to the public interest; and second is that it's appropriate to terminate the agreement in all of the circumstances.

PN13

I'll first deal with the public interest consideration. We say that if termination is contrary to the objects of the Act, that that tells on the public interest consideration, and that if it's contrary to the objects of the Act and the relevant Part of the Act, that that lends itself to a finding that it's also contrary to the public interest. We say further to that the termination of the agreement would be contrary to the objects of the Act and Part in a number of different ways.

PN14

This agreement expired only in July 2012. We say that termination of this agreement would undermine collective bargaining in that the previous agreement is generally the starting point for the next agreement as parties enter in negotiations. Termination in this case would lower the floor for any future bargaining that may happen between the parties in that the terms and conditions of the award would be there, which we say are lower than those in the agreement. The ASU is seeking negotiation of a new agreement and has notified the employer as such.

PN15

THE COMMISSIONER: Are the negotiations underway, Mr Shepherd?

PN16

MR SHEPHERD: No, this application came only some seven days after expiry of the agreement.

PN17

THE COMMISSIONER: Yes. All right. Mr Shepherd, I don't want to hear you for the time being any further. Thank you for that.

PN18

MR SHEPHERD: No, that's all right.

PN19

THE COMMISSIONER: Thank you for that. It might be that that's a foundation to understand your position. Mr Dean, do you want to put something on the record? It is my intention then to have a conference and I'd be likely then to come back on the record if either party requests that.

PN20

MR DEAN: Yes, Commissioner. All we'd like to say that in our submission we provided information as to why we wanted the agreement terminated. Unfortunately, the position from HSU has not been forwarded to us on why they wanted that, so we're at a little bit of a disadvantage here today to respond - - -

PN21

THE COMMISSIONER: I'm sorry, what about the HSU?

PN22

MR DEAN: HSU were asked to provide a written submission as to why they disagreed with the termination.

PN23

THE COMMISSIONER: Asked by you to provide that?

PN24

MR DEAN: Asked by your office.

PN25

THE COMMISSIONER: Yes, I see.

PN26

MR DEAN: That was not forthcoming, I'm led to believe, so we've got seen that.

PN27

THE COMMISSIONER: Yes.

PN28

MR DEAN: So we're very much in the dark today as to why the HSU are opposing our termination.

PN29

THE COMMISSIONER: You believe they are opposing it?

PN30

MR DEAN: Yes. They notified us by email that they will be opposing it, but not as to the grounds as to why.

PN31

THE COMMISSIONER: Yes, all right. Let's see what Mr Shepherd knows about it. Mr Shepherd, you only appear, don't you, for the ASU? You've got no broader brief today?

PN32

MR SHEPHERD: Yes, that's correct. I'm not sure if perhaps Mr Dean was inadvertently referring to the HSU when he may have meant the ASU. I'm not clear on that point.

PN33

MR DEAN: I apologise. I meant the ASU.

PN34

THE COMMISSIONER: Yes, all right.

PN35

MR SHEPHERD: I only appear for the ASU, Commissioner.

PN36

THE COMMISSIONER: Are you the only - is there another union involved, Mr Shepherd?

PN37

MR SHEPHERD: I believe we're the only union covered by the agreement.

PN38

THE COMMISSIONER: All right. Yes, go on, Mr Dean.

PN39

MR DEAN: Commissioner, we're happy to go into a bargaining issue here in relation to - but we are at that distinct disadvantage of not understanding the reasons behind it. So until we see those probably most of my comments are in the information that we've already provided to you - - -

PN40

THE COMMISSIONER: Yes.

PN41

MR DEAN: - - - in the interests of not wasting your time, Commissioner, we will rest there.

PN42

THE COMMISSIONER: Yes, all right. I think it will be useful to have a conference and I'm going to do that by going off the record now.

OFF THE RECORD [11.37AM]
ON THE RECORD [12.24PM]

PN43

THE COMMISSIONER: The transcript will reflect the amount of time that's been spent in a conference today with Mr Shepherd and Mr Dean and Ms Ross. I am genuinely grateful for the exchange of views. It's perhaps unnecessary to cover all the ground that has been dealt with in the conference except to say - and I might do this briefly on the record - Mr Dean, there has been some discussion just a few minutes ago, prior to coming back on the record, about some imperfect response from the ASU to the fact of the case coming on. Am I right in saying that you don't press any criticism of the ASU in that respect after the conference?

PN44

MR DEAN: No, no criticism.

PN45

THE COMMISSIONER: Yes, all right.

PN46

MR DEAN: It just appears to be that there's been a bit of miscommunication from both parties.

PN47

THE COMMISSIONER: Yes, thank you. It's my view certainly that there isn't entire agreement about all these things, but there is no lack at all of goodwill and indeed some mutuality. But the position is that Moira Healthcare at Yarrawonga do have an application before me to seek termination of the Home and Community Care Services Moira Healthcare Alliance Enterprise Agreement 2010. That is an agreement that expired, I think, in July of this year; including bringing with it a benefit at its closing knell.

PN48

It's quite clear that in a considered way the management of Moira Healthcare see a benefit in there being a return to the award, and thus the application. I'm advised that 43 of the 67 relevant employees have recently indicated that that is their preference at a ballot. The ASU have urged that there be a reconsideration essentially and that a real effort be made to reach an agreement. That's where the conference today has been, in a sense, productive, because reserving his rights, Mr Dean has agreed with Ms Ross to participate in the short term in an intensive effort to reach an agreement and see what the issues are that both sides particularly want.

PN49

There are some priority advantages that are sought to be gained by the management at Moira Healthcare; they relate to weekend work. I think there may be others - hope there are others; and there will undoubtedly be some priority issues pressed by the ASU. I'm advised by Mr Shepherd and Ms Ross and Mr Dean that they will meet and discuss those in a very focused way over the next four weeks and they'll arrange the necessary dates. Two of those weeks are given over to a change of the office, so it's going to cause some discombobulation, but then there will be the sort of discussions that we've talked about.

PN50

It won't take too long if the parties are pretty well prepared, as I think they will be, to know whether there is some benefit able to be contained in the negotiation of a new agreement. It may be - I don't know, I'm not trying to presuppose that this would be the result - it may be that one of the aims of the management can be accommodated with no great deficit to Moira, and that is the incorporation of the clerical and administrative people so that - with some attendant payroll and administrative savings, so that hopefully will be something that Mr Shepherd and his colleague Mr Lockwood will be able to focus on as well.

PN51

And then it's the case, though, that if there is no progress made and Mr Dean, you're of the view that it hasn't been constructive from your point of view, you can press your application, and you'd do that by simply making an approach to my associate and asking the matter to come back on. Mr Shepherd, I should say, perhaps in an abundance of fairness, as indicated, that it will be in any event the ASU's position at any stage to press for an agreement because they think that that offers the best advantage for employees at Moira Healthcare. Mr Shepherd - I might just work along the bar table - is there anything I've said that you think doesn't encapsulate what's been said today?

PN52

MR SHEPHERD: No, Commissioner. That looks all correct to me.

PN53

THE COMMISSIONER: Thank you. And you too, Mr Dean?

PN54

MR DEAN: Yes, Commissioner.

PN55

THE COMMISSIONER: Thank you. Mr Shepherd, I'm going to make an unusual observation - and if necessary, could you refer this to the secretary - in my view it will be very beneficial if you wend your way to Yarrawonga to participate in these discussions, because for a very good personal reason, as we know - because you told the assemblies today - Mr Lockwood is unable to attend; but I think it would be helpful - you having been here, to understand quite the way in which Ms Ross and Mr Dean have approached it - if you participate. Not just once, but if you identify with this negotiation too and give it your helping hand. I now adjourn.

<ADJOURNED INDEFINITELY [12.30PM]