C2014/1016, Transcript of Proceedings [2014] FWCTrans 527 (16 September 2014)

TRANSCRIPT OF PROCEEDINGS

---

Fair Work Act 2009 1050580-1

COMMISSIONER JOHNS

C2014/1016

s.739 - Application to deal with a dispute

Health Services Union
and
St John's Village
(C2014/1016)
St John's Village Inc., ANF and HSU Enterprise Agreement 2009

(ODN AG2010/5167)
[AE877476 Print PR996482]]




Melbourne

12.40PM, THURSDAY, 4 SEPTEMBER 2014

Reserved for Decision

PN1

THE COMMISSIONER: Appearances, please.

PN2

MR S. TSITAS: Steven Tsitas, from the HSU.

PN3

MR S. MITCHELL: Stephen Mitchell, from the HSU.

PN4

MR M. RAHILLY: If the commission pleases, I seek permission to appear for the respondent.

PN5

THE COMMISSIONER: Yes, and on what basis under section 596 do you seek permission?

PN6

MR RAHILLY: Commissioner, the issue that will be raised before you this morning is a threshold issue and it is a jurisdictional issue. It goes to the question as to whether the commission as presently constituted has power to make any determination in relation to the application or dispute notification before it.

PN7

THE COMMISSIONER: So your application is under 596(2)(a), is it?

PN8

MR RAHILLY: That's correct, sir.

PN9

THE COMMISSIONER: Yes. Mr Tsitas, what do you say about the application that the respondent be represented by a paid agent?

PN10

MR TSITAS: We don't have any problem.

PN11

THE COMMISSIONER: All right. I grant permission, Mr Rahilly.

PN12

MR RAHILLY: Thank you, Commissioner.

PN13

THE COMMISSIONER: Mr Tsitas?

PN14

MR TSITAS: If I can address, I suppose, the issue in relation to whether you have the power to hear the matter here before us. I did mention by way of my response, as I was asked to with respect to Mr Rahilly's position - but he had not identified which part of the Act with respect to the inability of the commission to hear the matter. In so doing, I had researched myself the contention about the inability. Specifically it talks in circumstances in which the nature of the dispute revolves around section 65(5). We contend that the matters here before you today are not in relation to sound business decisions and therefore it would indicate that you have the ability in fact to hear this matter here today.

PN15

MR RAHILLY: Commissioner, the issue that was raised in my email to you a week or so ago is broader than the provisions of the Act itself.

PN16

THE COMMISSIONER: As I understand it, you say what is being sought by the applicants is, in effect, a declaration - - -

PN17

MR RAHILLY: Yes.

PN18

THE COMMISSIONER: - - - as to past rights. It is akin to judicial power and not something that this commission is invested in.

PN19

MR RAHILLY: That's correct, sir.

PN20

THE COMMISSIONER: But this commission every day issues decisions about how agreements should be applied - or how employers should apply those agreements. How is what is being sought here any different to an order about how the employer should apply this agreement moving forward?

PN21

MR RAHILLY: What is really being sought from you though, Commissioner, is an interpretation of - - -

PN22

THE COMMISSIONER: That's the bread and butter work of this commission; interpreting agreements and how they are to be applied.

PN23

MR RAHILLY: With respect, it's not really. What is really being sought, as was being sought the first time this matter came before you, is a declaration by way of interpretation of provisions of an award. An award which no longer applies, I might say.

PN24

THE COMMISSIONER: Well, it's not an interpretation of the award. It is an interpretation of the agreement. The agreement incorporates, by reference, some clauses that were in an award that no longer exists, but this is an interpretation of an agreement matter.

PN25

MR RAHILLY: All right.

PN26

THE COMMISSIONER: And the agreement clause to be had regard to is clause 33 in the former award.

PN27

MR RAHILLY: Yes.

PN28

THE COMMISSIONER: But it's an interpretation of an agreement. As I say, that is the bread and butter work of this commission; interpreting agreements and telling employers how they are to apply those agreements moving forward.

PN29

MR RAHILLY: Well, with respect, it still is interpretation of a statute, the agreement being an instrument under the Act and supporting the legislation.

PN30

THE COMMISSIONER: And the commission does that every day of the week. Go and look up any 739 dispute and decision and order of this commission, and it's what the commission does every single day of the week. Take me to one authority which tells me that in deciding how this employer should apply these clauses moving forward, the commission as presently constituted will be exercising judicial power and therefore is out of jurisdiction. Take me to one authority now.

PN31

MR RAHILLY: I can't do that.

PN32

THE COMMISSIONER: Well, that's very unsatisfactory if you can't take me to any authority to tell me that I haven't got jurisdiction to deal with this. You just make this bold submission from the bar table.

PN33

MR RAHILLY: With respect, I mean, the boilermakers' case was where this all began.

PN34

THE COMMISSIONER: Yes, and I'm very aware of that. I'm very aware of the difference between a declaration as to past rights, which is not what is being sought of me here, and a determination that talks about how this employer is to apply this clause moving forward. That is what is being asked of me.

PN35

MR RAHILLY: With respect, you're not being asked to make a variation to the provisions.

PN36

THE COMMISSIONER: No, I'm being asked to look at the clauses as they exist now and tell this employer how should it apply these provisions moving forward. If I say to the employer, based on a plain reading of the clause, it is to apply the 17 and a half per cent loading on the fifth week of annual leave, then the order of the commission will be that it must do that moving forward; but that gives the employees no right to back pay, it gives them no rights in relation to their past entitlements.

PN37

If they want to pursue that, they can go and do it down at the Federal Circuit Court or the Magistrates Court or the Federal Court of Australia, but asking this commission for a determination about how should the employer apply this agreement moving forward is, as I say, the bread and butter work of this commission.

PN38

MR RAHILLY: If the commission pleases.

PN39

THE COMMISSIONER: All right. Mr Tsitas, it's your application.

PN40

MR TSITAS: Thanks, Commissioner. Now that we've dealt with the procedural - - -

PN41

THE COMMISSIONER: Well, I've heard from you on jurisdiction. I've heard from Mr Rahilly on jurisdiction. It will be a part of my decision, whether or not I have jurisdiction. I'm not saying I have jurisdiction. I'm saying I've heard your arguments on it and part of my decision, when I issue it, will address the question of jurisdiction.

PN42

MR TSITAS: Thank you.

PN43

THE COMMISSIONER: But I will hear now the substantive matter.

PN44

MR TSITAS: Yes.

PN45

THE COMMISSIONER: Such that if I determine I have jurisdiction, I can also then determine the substantive matter.

PN46

MR TSITAS: Thank you.

PN47

THE COMMISSIONER: To that extent, insofar as in your correspondence, there was - - -

PN48

MR TSITAS: The one particularly of interest to the substantive question - - -

PN49

THE COMMISSIONER: Well, no. Just to be clear, insofar as your submissions of 29 August, you say:

PN50

We believe that Commissioner Johns agrees with the union's position that he can hear the matter.

PN51

That is not an accurate statement. I am saying I can hear an argument about whether or not I have jurisdiction and I've heard that argument, and I'll make a decision about that. I will hear the substantive matter and if I determine that I have jurisdiction, then I will determine the substantive matter. Now go to the substantive matter.

PN52

MR TSITAS: Thank you. Perhaps of relevance to the substantive matter then is the submission that I made dated 21 August. It's timely inasmuch as it addresses the point you made earlier to Mr Rahilly with respect to the operation of the old award, the HASA Award, inasmuch as that it has in fact been succeeded by the Aged Care Award.

PN53

THE COMMISSIONER: How can that be relevant? How can what is in an agreement later in time be relevant to the determination I have to make about what this clause means in respect of an agreement which was approved or certified on 23 April 2010?

PN54

MR TSITAS: Indeed it doesn't, in a nutshell, but it was perhaps to pre-empt an argument from the employer's side that there was a question mark in terms of its operation; but I do take the point that given the fact the original agreement had been hatched prior to this award coming into being, then essentially given the fact that it makes reference to the parent award in that agreement, being the old one - but it was essentially to sort of try to cover all the bases as far as our position was. So far as the argument was concerned in relation to whether the benefit was to be conferred for seven-day shift workers in relation to the fifth week of annual leave earnt, namely, being 17.5 per cent loading, or the projected roster, whichever was the greater, our position was that they were in fact entitled to that benefit.

PN55

If I may, just by way of backdrop with respect to the time in which we had conciliation, it wasn't my intention with respect to the position that I had outlined on the 29th, to misrepresent the position of yourself; but it was more by way of a summary in my mind that essentially we would not have been allowed to come here if, for instance, there were no prospects of success in doing so. I sort of tried to summarise essentially that given your clear position at that time, and as you mentioned in your opening remarks that you could not confer a retrospective benefit by way of a decision here today - as you said, if we were seeking that, we would need to make representations to the courts.

PN56

Respectfully, we believe that there is an ability by yourself in order to do so which would facilitate negotiations with St John's going forward that the 12 or so employees who are members of our union - I can't vouch for all of them being shift workers necessarily, but whoever of the 12 are, would in fact be paid in the future in accordance with the agreement's provisions relating to the loading associated with the fifth week of annual leave.

PN57

THE COMMISSIONER: I understand what you say the clause means, but why do you say that? I mean, what was the custom and practice in relation to the Health and Allied Services - Private Sector - Award? What material can you take me to, to help me work out whether or not clause 33.2.2 applies to clause 33.3 at all? That's the question. You say, "Well, it just does."

PN58

MR TSITAS: If I can expand on it a little bit.

PN59

THE COMMISSIONER: How am I to construct this provision such that I find in your favour?

PN60

MR TSITAS: There were two arguments that essentially the employer had mentioned from the outset which we believe was arguing from a false premise. One was with respect to the fact that 33.1 stood alone. Our contention was that they should be read as a whole. Also their contention in relation to not paying the loading was in fact the fact that they had been doing so with regard to the Nurses Award, but it seems clear that they were applying a different standard to a different class of employee as opposed to employees who are members of our union who clearly were operating under a different agreement.

PN61

In that respect, we believe that St John's had made an error inasmuch as trying to apply that standard or that provision of the Nurses Award to our members. Clearly in terms of the entitlement then as indicated in 33.2 and the way it's broken down, we believe that in fact our members are entitled to that - - -

PN62

THE COMMISSIONER: I know what you believe. I'm asking you to explain to me why you believe it and the legal authority or principles that I need to apply in the construction of this agreement clause that will assist you.

PN63

MR TSITAS: If I may, and this might help, the copy that I have here with respect to the Aged Care Award - and I know before - that it has no standing with regard to the argument, but perhaps the annotations that are contained within it on behalf - this is a joint document that was worked between the Fair Work Ombudsman and the Aged and Community Services of Australia. They have quite an interesting take on this in terms of what the entitlement is or how it is to be conferred on those employees.

PN64

THE COMMISSIONER: But what does that relate to? Does that relate to the St John's Village Inc, ANF and HSU Enterprise Agreement 2009?

PN65

MR TSITAS: Well, no, but - - -

PN66

THE COMMISSIONER: Then how can it help me in the interpretation of this agreement?

PN67

MR TSITAS: The language contained in both is pretty much the same. There's not much in the way of a different - in terms of the language that's used. Therefore, the interpretation, I would suggest, is the same. That is, that if you have done 10 shifts in a given year, then you would be eligible for the fifth week and it would be paid on the same terms and conditions as the four weeks of annual leave.

PN68

In addition, there is nowhere in the additional reading that I did outside of the wording that's contained in these things, so where - it makes no distinction or seeks to discrimination between private sector employees and private - public and private in terms of how this is to be distributed. It seems that the benefit is to be conferred on that class of employee who essentially earns that additional week of annual leave courtesy of being a shift worker. If there was a contradiction, we perhaps would not be here today.

PN69

THE COMMISSIONER: Mr Tsitas, in April 2010, St John's Village, the ANF and the HSU decided to enter into an enterprise agreement. They decided to incorporate into that enterprise agreement clause 33 from the Health and Allied Services - Private Sector - Award. All that matters is what is meant by clause 33. Now, can you take me to any custom and practice that applied to clause 33 up to and including April 2010?

PN70

MR TSITAS: None has been provided to me, Commissioner Johns.

PN71

THE COMMISSIONER: Right. Can you take me to any decisions of this commission or of any courts about how clause 33 in the Health and Allied Services - Private Sector - Award is to be interpreted?

PN72

MR TSITAS: I haven't been able to find on that - - -

PN73

THE COMMISSIONER: It's somewhat unsatisfactory the way that this matter has been dealt with. There's a clause there. You say it means one thing, the employer says it means another thing. No-one brings before the commission any evidence of past custom and practice. No-one brings before the commission any legal authorities. Essentially from both sides this is handball - says, "Look, we don't know. We think it means one thing or the other. You go figure it out, Commissioner."

PN74

It's a pretty unsatisfactory way to run a case. It's your obligation to prosecute this. It's your obligation to convince me that your interpretation is right and so far no evidence, no submissions, no authorities, nothing. What am I meant to do?

PN75

MR TSITAS: The only authority that we had, Commissioner, was, as I said, the material that I thought would at least assist in trying to shed some light in terms of how that's interpreted; certainly perhaps, one could argue, from an academic standpoint on one side and then in terms of the material that I referenced - and perhaps now erroneously - in regard to the successor award.

PN76

THE COMMISSIONER: Right. Mr Rahilly, can you assist me in any greater measure?

PN77

MR RAHILLY: Yes, I can, sir.

PN78

THE COMMISSIONER: Very good.

PN79

MR RAHILLY: Mr Hill is with me. He is the CEO of St John's Village. I would ask him to go to the witness box. He can give you evidence as to the custom and practice at St John's Village in relation to the fifth week of leave and payment, or non-payment if you like, of loading on that leave, if that would assist you.

PN80

THE COMMISSIONER: You're entitled to call your witness.

PN81

THE ASSOCIATE: Please state your full name and address.

PN82

MR HILL: Commissioner, Peter David Hill, of 138 Williams Road, Wangaratta.

<PETER DAVID HILL, AFFIRMED [1.00PM]
<EXAMINATION-IN-CHIEF BY MR RAHILLY [1.00PM]

PN83

MR RAHILLY: Mr Hill, for the record would you state your full name and address?---Peter David Hill, (address supplied). Williams Road, of course, is the address of the facility.

PN84

And you are the chief executive officer at St John's Village?---I am.

PN85

THE COMMISSIONER: How long have you been in that position?---18 months, Commissioner.

PN86

So you weren't in the position when the agreement was negotiated in April 2010?
---No, I was not, Commissioner.

PN87

MR RAHILLY: Are you able to indicate to the commission what your understanding is of the custom and practice in relation to payment of loading on the fifth week of annual leave for shift workers?---I can. Commissioner, I can assure you that the interpretation of St John's Village, Wangaratta, has always been to read the award that is set before us - 33, that runs through to the section of 33.2.2 for loading - as being completely separate and that 33.3 that is coming after that section of the award, has been read and interpreted separately and paid accordingly. That is, the amount of remuneration or allocation of leave has just been the one additional week without any loading paid on it. That is historically the interpretation of the award at St John's.

PN88

Thank you. I have no further questions.

PN89

THE COMMISSIONER: Mr Tsitas, do you have any cross-examination?

**** PETER DAVID HILL XN MR RAHILLY

<CROSS-EXAMINATION BY MR TSITAS [1.02PM]

PN90

MR TSITAS: I would, by way of your application, if I can. You had mentioned in relation to the operation of the Nurses Award - can you, sort of, just explain for our benefit why you are interpreting as to how that's calculated in that regard given the fact that in respect of our members, we don't have nurses. Would you agree with me, therefore, that basically applying that standard, it is incorrect?
---Commissioner, I understand that they are two separate categories, where St John's is a small employer of 220 staff, and when the matter was raised, I reviewed it only having been there 18 months and not being there when the first interpretation took place. I looked at it and felt it could be read that way, but also I saw support in that it was consistent with how other individuals who worked in similar areas in the organisation were paid, and that it was a consistent interpretation purely - not to suggest, as you say, to see them as the same and to confuse things, but rather to look for what could be a consistent view in the organisation's - from an organisational perspective. That's all.

PN91

I do have supplementaries, if I can.

PN92

THE COMMISSIONER: Yes, of course.

PN93

MR TSITAS: I pretty much had surmised as much, but in order to harmonise that from an HR perspective in terms of how that's calculated or not, can you see why we believe that that has been done in error? Is there no way in your systems in order to have two particular platforms built into your HR system; one which recognises the nurses who fall under the Nurses Award and, therefore, the separate category of employees who are not covered by the award? It appears the way the benefit is conferred is different. One talks about an accrual of 152 hours over a given year and the other one specifically talks in the context of the seven-day shift workers having worked 10 weeks in any given year to basically accrue that fifth week?---Certainly, Commissioner, I agree that they are employees that are engaged under two separate awards and they have distinguishing factors that make them quite distinctly different. It was just in this particular area that I personally was looking for further vindication, if you like, for how this interpretation was being applied and I wouldn't see it as really necessarily a sound legal approach rather than a practical management perspective from a non-legal person like myself.

**** PETER DAVID HILL XXN MR TSITAS
PN94

Just with respect to this categorisation, I note with interest it was depicted otherwise as counter-leave. Given the fact that there's no such provision that actually identifies it in that way, that, too, essentially is an HR phraseology that has come by way of the system; but it appears anecdotally, anyway, without dwelling on it too much, that whatever the computer system and the way it generated that phrase has caused confusion, given the fact that people in trying to read what their benefits might be or not, could not source this particular counter-leave. There had not been any explanation to suggest that this was just an internal creation rather than reflecting the award. Would you agree with that?
---Commissioner, the term "counter-leave" was something that came as a result - as has been stated, from the software which is used by the organisation. However, whilst it's just a term that was given, it has always been explained and I believe understood by those people from an HR department perspective. They understood what they got loading on, what their leave entitlement was and we have copies of the award there for them to see and be explained to them, so that they - whilst we've got this - it's almost a term specifically that St John's use, because I hadn't heard of it outside of St John's either, but it seemed to me as though they understood. That is, across the board, the staffing and HR talked about it and I had to say, "What's counter-leave?" and it was just this one week that, you know, they picked up and just, you know, used as almost a nickname; but everybody understood what it meant, that one extra week's leave, the fifth week, that they wouldn't get any loading - receive any loading in. Hence, there has never been any discussion about that prior to this one person who, after resigning from the organisation, questioned it, because there had been a complete understanding by all staff of what it meant and how it was applied.

PN95

One final question, if I may. I note that you mentioned earlier you have only been with the facility for the past 18 months. In your experience, and perhaps this might address the earlier point that was made with respect to custom and practice, in your travels - and I'm assuming that they've come by way of the same - have you ever experienced where the shift workers in question were not paid either the 17.5 per cent or the projected roster, whichever was the greater?---No, Commissioner, it hasn't been raised or discussed, so there hasn't been a question. I was in my last organisation, which was based in South Australia, and the matter wasn't discussed and, hence, being CEO of a similar sized organisation, I quite honestly never delved into it and hadn't given it any consideration, looking at that leave on that fifth week. It never was raised.

**** PETER DAVID HILL XXN MR TSITAS
PN96

If I can - it will help me to expand on that final point. Are you suggesting that in your travels that had not been paid or you can't be certain as to whether it had or had not?---No, I could not be certain that it had or had not.

PN97

Thank you, Commissioner.

PN98

THE COMMISSIONER: Do you have clause 33 in front of you there, Mr Hill?
---I do, Commissioner, yes.

PN99

Just looking at clause 33.3 - read that for a moment. How do you know which rate of pay to pay people of that additional week?---How do I know which rate of pay to pay people for that week?

PN100

Yes?---Well, to me the clause states simply that the employee is paid for one additional - - -

PN101

Hang on. Where does it say "paid" there?---Sorry. Annual leave in addition to the leave prescribed - - -

PN102

But just on a plain reading, clause 33 provides that the shift worker shall be entitled to one week's annual leave in addition to the leave prescribed in 33.1. Isn't that right?---That's right, Commissioner.

PN103

So it gives the employee an entitlement to one week's annual leave, doesn't it?---It does.

PN104

Where in that clause does it tell you at what rate of pay you pay that one week's additional leave?---It doesn't.

PN105
**** PETER DAVID HILL XXN MR TSITAS

So why do you assume that it is at ordinary pay?---Because it makes no allowance for that - - -

PN106

Well, it makes no allowance for - why don't you pay them at zero?---In my reading, Commissioner, it's purely - it states that there will be one additional week's leave, so it will be calculated on the basis of how all other leave is to be calculated. That is, based on their rostered hours, and I would treat it that same way. The four weeks' annual leave that they accrued and how their remuneration would be calculated would be consistent - this one week would be consistent with those four other weeks.

PN107

If it's consistent with the four other weeks, they get the 17 and a half per cent loading if it's higher than what their projected roster and so forth would be?---It would be paid purely on the calculation and the loading, as stated in the earlier section of this award, is purely paid on those four weeks, not a fifth week.

PN108

But clause 33.3, all it does is give the employee an entitlement to one week's additional leave. It doesn't tell you whether that's an unpaid week, a week paid at ordinary pay or a week paid at some other rate, does it?---No, it doesn't.

PN109

So how is it that you then form the view that it's paid at ordinary pay? Presumably that's because it says it's in addition to the leave prescribed in 33.1 and so then you go to 33.1 and it talks about four weeks' annual leave at ordinary pay?---Yes.

PN110

But then 33.2 says "provided that ordinary pay for the purposes of this clause," which must include 33.1, "shall mean the remuneration of the employee's weekly number of hours calculated at the ordinary rate of time and in addition shall include" - what I can't understand is if you refer to clause 33.1 to assume that the starting point is ordinary pay, how it is that you then don't follow it for 33.2 and why is it you treat the fifth week different to the four weeks?---Yes. Commissioner, the only rationale I can see that has been historically the case at St John's, is that the 33.3 has been interpreted to some degree in isolation. That is, it has come down further down the track than rather be added in as 33.1(a), in which case, you know, it would come before the application of the loading. That is, you know, purely just reading it as it's set out there; giving just that one week's leave and nothing else.

**** PETER DAVID HILL XXN MR TSITAS
PN111

Well, you say it's one week's leave at ordinary pay?---Yes.

PN112

Despite the fact that those aren't the words there?---Yes. I can see the ambiguity there.

PN113

All right. Anything arising from that, Mr Rahilly?

PN114

MR RAHILLY: No, Commissioner.

PN115

THE COMMISSIONER: Anything further, Mr Tsitas?

PN116

MR TSITAS: Just, if I can - and perhaps it's a second bite at the earlier position I was trying to articulate. Mr Hill, inasmuch as he created his own ambiguity as opposed to an ambiguous set-up, I think the points that you raised are correct inasmuch as that clause 33 must be taken as a whole, inasmuch as that it doesn't actually expand at 33.1.1 what the nature of that additional week will be or how it is to be paid, yet it does draw the reader then to 33.2, which has been our position.

PN117

Given that we are talking about specifically the seven-day shift workers, if we go to 33.3, it does draw the reader back to 33.1 with respect to that. It only seems to reinforce the fact that the terms upon which that particular additional week is to be considered is in light of 33.1, so it's read as a whole rather than seeking the highest - or what appears to be taking a section which seemingly the employer in this instance believes, as custom and practice, advantages them not to pay, but can't get away from 33.2 and 33.3.

PN118

This is clearly just by way of the opening paragraph at 33.2; how that is to be paid. Yes, it does make reference to the ordinary rate of pay, whereas 33.1.1 does not. Then at 33.2.1, it breaks down (a), (b), (c) and (d), the nature upon which any addition - may be paid on top of that, but 33.2.2 makes it pretty clear then in regard to the loading component. We believe that the whole clause, taken as a whole, is and should be the way in which it should be applied rather than seeking to cherry pick those sections, because they are meant to be read in conjunction with each other.

**** PETER DAVID HILL XXN MR TSITAS
PN119

THE COMMISSIONER: Any more questioning for Mr Hill?

PN120

MR TSITAS: No, Commissioner.

PN121

THE COMMISSIONER: Mr Hill, can I thank you for your evidence today. You are excused?---Thank you, Commissioner.

<THE WITNESS WITHDREW [1.21PM]

PN122

THE COMMISSIONER: For each of you, Mr Tsitas and Mr Rahilly, isn't the question then before the commission simply this: in respect of clause 33.2, does the reference to "this clause" refer to clause 33 as a whole or only to clause 33.1.1? Isn't that the question I have to answer? Mr Rahilly?

PN123

MR RAHILLY: I think so, Commissioner, yes.

PN124

THE COMMISSIONER: Yes. Thank you.

PN125

MR TSITAS: Yes, Commissioner.

PN126

THE COMMISSIONER: All right.

PN127

MR RAHILLY: Can I just say, Commissioner, that on reading clause 33.1, 33.1.1 indicates that an employee is entitled to four weeks' annual leave on ordinary pay after 12 months. 33.2 provides what ordinary pay will mean for the purposes of 33.1.1. 33.3 says that an employee is entitled to annual leave in addition to the leave prescribed in 33.1. It doesn't say in addition to - or as provided for in 33.2.

PN128

THE COMMISSIONER: Yes, but because 33.3 doesn't make any reference to the basis upon which that additional week is paid, on your construction it must mean that you could grant the additional week at no pay.

PN129

MR RAHILLY: No, because the additional week is in addition to the leave prescribed in 33.1, which is - - -

PN130

THE COMMISSIONER: Yes, but then as soon as you grab - - -

PN131

MR RAHILLY: - - - at ordinary pay.

PN132

THE COMMISSIONER: Yes, that's right.

PN133

MR RAHILLY: Yes.

PN134

THE COMMISSIONER: But then as soon as you pick up the reference in 33.1.1 to ordinary pay, it automatically draws you into 33.2, because 33.2 says "provided that ordinary pay means - - -"

PN135

MR RAHILLY: Commissioner, I don't necessarily agree with that, because it seems to me that the way the clause was drafted is that - - -

PN136

THE COMMISSIONER: Regrettably.

PN137

MR RAHILLY: Regrettably, correct. That's not an unusual occurrence, I must say.

PN138

THE COMMISSIONER: I know.

PN139

MR RAHILLY: But the way the clause is drafted, it deals in 33.1 with your stock-standard employee, if you like. They get four weeks' leave and they get it at ordinary pay. 33.2 tells you, for the purposes of those employees, what ordinary pay means. Then it's suggested - although I'm not able to point to this - that the circumstance of the non-stock-standard employee or the seven-day shift worker, was addressed in a separate way and it was expressed that they get an additional week's leave in addition to that prescribed in 33.1.

PN140

It tells you then - 33.1 tells you what that additional week of leave - and what the entitlement is in relation to that additional week of leave. That is, it's paid at ordinary pay.

PN141

THE COMMISSIONER: I understand how you put that, yes.

PN142

MR RAHILLY: Yes.

PN143

MR TSITAS: Commissioner, I just wonder whether perhaps it might be opportune to request that a further witness be presented. Mr Mitchell has indicated he would like an opportunity where he can be - - -

PN144

THE COMMISSIONER: It's somewhat unorthodox, Mr Rahilly.

PN145

MR RAHILLY: Yes. I've got no objection, Commissioner.

PN146

THE COMMISSIONER: No objection. All right, yes.

PN147

THE ASSOCIATE: Please state your full name and address.

PN148

MR MITCHELL: Steven John Mitchell, (address supplied).

<STEVEN JOHN MITCHELL, SWORN [1.26PM]
<EXAMINATION-IN-CHIEF BY MR TSITAS [1.26PM]

PN149

MR TSITAS: Mr Mitchell, just with regard to the earlier references today, particularly in relation to custom and practice, in your time as an organiser and not specifically with reference to your dealings with St John's retirement village, has this particular issue ever been a contention where we needed to make representations to the commission to, I suppose for want of a better term, settle the argument?---Not that I'm aware of. Normal custom and practice - because both the public sector and private sector EBA awards are very, very similar, and it has always been taken that that fifth week of annual leave is paid based on the projected rosters or the 17 and a half per cent loading.

PN150

THE COMMISSIONER: Mr Mitchell, how long have you been an organiser?
---For this period of time, just coming up to two years. Prior to that, I was an organiser from 2000 to 2004.

PN151

In this sector?---Yes, Mr Commissioner.

PN152

What experience do you have of organisations that were - or still remain through some incorporation of the Health and Allied Services - Private Sector - Victoria Consolidated Award?---I'm a regional organiser, Mr Commissioner. I do basically north-eastern Victoria, so I deal with all the private sector aged sites, private hospitals and public hospitals. Over the period of time, we deal with all facets of those areas and this particular situation has not come up before. The only reason it came up was a reference to counter-leave, which we've never heard of before because it hadn't been mentioned. There were no issues in regard to this coming out of St John's at that particular time. It was just this reference to counter-leave and when we queried it, St John's said, "Well, that's basically - it has been that way for years." However, later on when we had a meeting, it was discussed that it may have been as a result of a computer pay program, as it was. There was some concern that - I think, by memory, they were talking about the computer program they had set up for pays was from Queensland. There may have been some confusion between if there was a separate issue in Queensland, as far as how they pay their annual leave component as to what the interpretation was or the general history of it in Victoria.

**** STEVEN JOHN MITCHELL XN MR TSITAS

<CROSS-EXAMINATION BY MR RAHILLY [1.29PM]

PN153

MR RAHILLY: Mr Mitchell, you indicated in your evidence-in-chief that the situation that is presently before the commission has not come up before to your knowledge?---Not that I'm aware of.

PN154

That being the case, you're not able to give any evidence as to what the general custom and practice is amongst employers in the private aged care sector in Victoria?---Since that has come up, in my travels - and we raised it back in early to mid-December. Since that period of time, everywhere I've gone in the aged care sector and private sector, I've made a point of raising the issue; is there a thing called counter-leave? Do the members get paid based on a fifth week of annual leave being paid with either 17 and a half per cent or projected roster? At this point in time, St John's Village is the only one where the staff have turned around and said, no, otherwise - they get paid their projected roster or the 17 and a half per cent.

PN155

I have no further questions.

PN156

THE COMMISSIONER: Any re-examination, Mr Tsitas?

PN157

MR TSITAS: No, Commissioner.

PN158

THE COMMISSIONER: Mr Mitchell, can I thank you for your evidence today. You are excused?---Thank you, Mr Commissioner.

<THE WITNESS WITHDREW [1.30PM]

PN159

THE COMMISSIONER: I think we're at closing submissions. Mr Tsitas, I should hear from you first. Is there anything further you need to submit to me?

PN160

MR TSITAS: Nothing by way of new material as such. Although some of this drafting that was raised earlier can be much to be desired of, the fact is I think in all the way that these things are constructed, they are to be read in conjunction with each other. If there were different classes of employees in question, naturally we would not seek to have that part read as a whole given the fact that we're talking about a specific class of employee; namely, the seven-day shift workers.

PN161

The actual construction in terms of how that benefit then relates back to them in terms of having earned the additional week of annual leave, becomes instructive, and so the point made with respect to 33.2.2 then becomes a valid one. If we were to solely rely on the employer's argument that 33.1 then stands alone, like you've mentioned validly, you would be left none the wiser as to how that additional week were to be paid. You may pay them nothing, as you mentioned.

PN162

We contend that the four weeks essentially either with the loading or the projected roster being conferred on those as standard - then for the seven-day shift workers having earnt the additional week by way of the 10 or more weekends worked as shift workers, are entitled to be paid under the same terms and conditions as the four that they would otherwise receive as the standard. That's pretty much, in a nutshell, our argument, Commissioner.

PN163

THE COMMISSIONER: Yes. Thank you, Mr Tsitas. Mr Rahilly?

PN164

MR RAHILLY: Commissioner, I don't think I need to say much more than what I've already said.

PN165

THE COMMISSIONER: Brevity is always appreciated. All right, gentlemen. Thank you for the submissions and I thank both the witnesses for their impromptu evidence. The commission will need to consider its position. We will reserve our decision and the commission is now adjourned.

<ADJOURNED INDEFINITELY [1.32PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

PETER DAVID HILL, AFFIRMED PN83
EXAMINATION-IN-CHIEF BY MR RAHILLY PN83
CROSS-EXAMINATION BY MR TSITAS PN90
THE WITNESS WITHDREW PN122
STEVEN JOHN MITCHELL, SWORN PN149
EXAMINATION-IN-CHIEF BY MR TSITAS PN149
CROSS-EXAMINATION BY MR RAHILLY PN153
THE WITNESS WITHDREW PN159